Beetson v. Stoops , 86 N.Y.S. 332 ( 1904 )

Ingraham, J. (concurring) :

I concur in the result. That the plaintiff and the defendant owned the property, in question as tenants in common, having had a vested remainder subject to a life estate of Andrew Moll, which became vested in possession upon his death, is not disputed; and I know of no principle upon which plaintiff’s title can be divested by any will that Andrew Moll could make devising the property to others. She owns an undivided half of the property, which came to her as heir at law of her grandmother.- That Andrew Moll had a life estate in the property gave him no right to divest this plaintiff of her vested remainder or to prevent the title to the property vesting in her upon his death. Andrew Moll by his will left to this plaintiff another house, to which under that will she claims title. That will has been duly admitted to probate. Mo attack has been made upon it, and so long as that will stands as the admitted last will and testament of the testator, I know of no principle by which a person to whom the testator devised a piece of real property can be divested of that property upon the- ground that by the will the testator intended to give-to another person a piece of .property over which he did not have the power of disposition. It is Undoubtedly true that this plaintiff cannot accept a bequest or. devise under this will and at the same time claim that the will is invalid; .but this rule has no application to this case, as the devise of the piece of property to the plaintiff contained in the will is not at all dependent upon or a part of the devise of the property of which the plaintiff was the' owner of an undivided half. Accepting á devise under the will cannot divest the plaintiff of her interest in the property which she owned when the will was made.' Whatever right the testator had in the property involved in this action was devised to the defendant. If he had no right, the defendant got nothing. But that provision of the will cannot affect the plaintiff’s title to the property which under the will was vested in her.

I think that the judgment should be reversed upon the ground that the plaintiff was entitled to judgment as prayed for in the -complaint.

Yah Bktjnt, P. J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide the event.