Hounslea v. Hand

Barnard, P. J.: The testator’s daughter, Ahuldah Tooker, under the Revised Statutes was possessed of an estate in fee simple absolute. The absolute gift of the land is declared subject to the condition that “ she and her heir or heirs born of her body shall have and enjoy the estate I have heretofore given her freely and clearly forever.” In case she should die without a child then the subject of the devise was to return to the testator’s daughter Nancy or her heirs. As the testator’s daughter Ahuldah left children living at her death the children of Nancy have no claim. The devise is to be considered as having-been made to Ahuldah “ and her heir or heirs born of her body.” She took a fee. (Lott v. Wykoff, 2 N. Y., 355.) The deed under, which the son of the devisee holds the property passed a good title, and the plaintiff has no interest in the same. Order denying a new trial- and refusing to resettle the findings affirmed, with costs. Gilbert, J., concurred ; Pratt, J., not sitting. Order denying a new trial and order refusing to resettle findings affirmed, with costs.