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Kent v. Fisk

Supreme Court of New York, Appellate Division

May 8, 1912

ROSEY T. KENT, Appellant,
v.
FRIEND FISK and EDWARD W. HOSKINS, as Administrators, etc., of MARY T. TUTTLE, Deceased, Respondents.

APPEAL by the plaintiff, Rosey T. Kent, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Essex on the 13th day of December, 1911, upon the decision of the court, rendered after a trial at the Clinton Special Term, sustaining the defendants' demurrer to the complaint and dismissing the said complaint.

COUNSEL

S.E. Maders, Edward H. Tatum and Maurice B. Dean, for the appellant.

Fred M. La Duke, for the respondents.

BETTS, J.:

Samuel D. Tuttle, a resident of the county of Essex in this State, made and executed his will July 10, 1865. Three provisions of that will are in controversy here and are as follows:

Page 280

' First. I give and bequeath to my beloved wife Mary Tuttle at my decease all of my personal property that may remain after the payment of my just debts and funeral expenses.

'Second. I do further give and bequeath to my wife aforesaid the use of all my real estate during her natural life and if at any time she thinks more is necessary for her support than the above bequest then she may have the exclusive right to sell and dispose of a portion of said real estate, or so much of same as she may consider necessary for her support during her natural life, and in case of sale be made for her to give a conveyance therefor the same as I might or could do if living, leaving all with her to do as she deems best.

'Thirdly. I give and bequeath to my adopted daughter Rosey Tuttle now aged about eight years all of my real estate that may remain undisposed of by my wife aforesaid at the time of her decease.'

He made his wife, Mary Tuttle, the sole executrix.

He died December 10, 1885, and his will was probated in Essex county February 16, 1886, and Mary Tuttle qualified as such executrix. She died intestate January 28, 1911. May 22, 1911, letters of administration upon her estate were duly issued to the defendants.

It appears by the complaint that at the time of his death Samuel D. Tuttle owned three pieces of real estate which are described in the complaint in this action. It is alleged in the complaint that in 1902 Mary Tuttle sold one of these parcels of real estate for $480, and took a bond from the purchaser and a purchase-money mortgage for $430 as part of the consideration for the conveyance, and that at the time of the commencement of this action there was $345 due upon this bond and mortgage unpaid; that about January 26, 1904, Mary Tuttle sold the second piece of real estate for which she took a promissory note from the purchaser bearing date on that day for $700, which note remained unpaid at the date of her death and the statute had not run against the payment of the same and there was remaining unpaid thereon the sum of about $945; that on October 13, 1909, Mary Tuttle conveyed the third piece of real estate for the sum of $2,500, and also took a bond and purchase-money mortgage thereon to secure that amount, and at the

Page 281

time of her death there was unpaid thereon the sum of $2,500, and more.

The complaint alleges that the defendants claim the possession of said bonds and mortgages and note as the administrators of Mary Tuttle and have inventoried the same as her property. The value of the property was $3,790; that plaintiff is the person named in the will as Rosey Tuttle and at all times since the death of Mary Tuttle was and is now the absolute owner and entitled to the immediate possession of the said bonds, mortgages and note and that the same has been twice demanded and refused, and the plaintiff asks judgment for the possession of the said securities or if delivery cannot be had for the value thereof.

The defendants demurred to the complaint on the grounds:

I. That it appears on the face thereof that the court has not jurisdiction of the ...


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