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25 Wend. 632

Chesebro v. Schoolcraft

New York Supreme Court

Decided October 15, 1841

New York Supreme Court · decided 1841-10-15

This was- an action of ejectment, tried at the Schoharie circuit in October, 1839, before the Hon. John- P. Cushman one of the eircuit- judges. The suit was brought for the recovery of about thirty-five acres of land. The plaintiff is the widow, and the defendant the husband of Phebe, one of the daughters of Christopher *Ohesebro, upon the [ *634 ] true construction of whose last will and testament the rights of the parties depend.

Cited by 2 later decisions — most recently November 1914

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1841-10-15

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¶1By the Court,

Nelson, C. J.

¶2There is no necessary repugnance or contradiction between the two clauses of the will; on the contrary, full effect and operation may be given to both. The first vests the widow1 with a life-estate; the last, the remainder in the daughter.

¶3*484It is true, in the preceding clauses containing dispositions to other children, the testator in terms limited them to take effect after the death of the widow, and, therefore, made them more specific and plain; but the one in question, when taken iri connection with the first clause, is equally so, unless we repudiate altogether an express and positive devise to the plaintiff. The only possible doubt in the case arises from the omission to add the.limitation in the devise to Phebe that is found in the others. Had it been omitted in them, it would have been clear, that neither daughter could take possession till the termination of the life-estate. Did the testator intend by the omission to discriminate between his children ? If he did, I think he 'should have been more specific, and qualified the general devise to his widow. While that stands absolute in terms, and not necessarily repugnant to any other part of the will, full effect must be given to it; and then the interest of the wife of the defendant is but a remainder to take effect in possession on the death of her mother.

¶4New trial denied.

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