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Smith v. Dugan

Supreme Court of New York, Appellate Division

July 7, 1911

LOUIS D. SMITH, Respondent,
v.
WILLIAM F. DUGAN and Others, Respondents, Impleaded with GILBERT F. SMITH and Others, Appellants.

Page 878

APPEAL by the defendants, Gilbert F. Smith and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of March, 1911, upon the decision of the court, rendered after trial at the New York Special Term.

COUNSEL

James F. Horan, for the appellant Farmers' Loan and Trust Company, as executor, etc.

Richard O'Gorman, Jr., for the appellants Mary J. Smith and others.

Edward J. McGuire, for the appellants Gilbert F. Smith and others.

Alexander L. Strouse, for the respondent Louis D. Smith.

Lucius H. Beers, for the respondents Dugan.

MCLAUGHLIN, J.:

This action, while originally brought to enjoin the defendant Farmers' Loan and Trust Company from selling certain real

Page 879

estate in the city of New York, was, when the same came on for trial, by stipulation, tried as one brought for the construction of the wills of Hugh and Andrew J. Smith.

Hugh Smith died in 1837, leaving a will which was probated the same year. He devised to each of his children one or more specific pieces of real estate, and to some of them he gave money legacies. The will provided in part as follows:

'I give, devise and bequeath to my son Andrew Smith my house and lot known and distinguished as Number (254) Two Hundred and Fifty-four East Broadway, in the City of New York, together with my house and lot known and distinguished as Number Two Hundred and Seventy-one Division Street (271) in said city, and also all the ready money of which I may be possessed at the time of my decease to Have and to Hold the same unto my said son Andrew to his heirs, Executors, Administrators and assigns forever. * * *

' Thirdly, it is my will, and I do hereby order and direct that in case of the death of any of my children herein named, without leaving lawful issue, the property bequeathed to such child shall be sold and the amount sales, after deducting the necessary expenses, be equally ...


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