¶1(concurring.) Without concurring in or dissenting from the construction placed by Mr. Justice Daniels upon the will of Thomas H. Geraty, deceased, I concur in the conclusion arrived at by him. A purchaser of land is entitled to a marketable title. A title open to a reasonable doubt is not a marketable one, and where such title depends upon a will the construction of which is open to discussion, even if the court is of opinion that the true construction will give the purchaser a good title, he should not be required to run the risk of a subsequent different construction being put upon *546the will. The heirs and next of kin of the testator are not bound by the construction put upon the will in an action between seller and purchaser, and -consequently"no binding construction can be given to the will.
7 N.Y.S. 542
Kilpatrick v. Burrow
Decided November 7, 1889
New York Supreme Court · decided 1889-11-07
Action by Edward Kilpatrick against Mary E. Burrow, executrix, etc., of Thomas H. Geraty, deceased, to recover money paid on a contract by defendant to sell plaintiff certain land in New York city, with which contract plaintiff alleged that defendant was unable to comply. Judgment for defendant for specific performance of the contract. Plaintiff appeals. For former report see 5 N. Y. Supp. 782.
Decided 1889-11-07