The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-05-19

yous III ere are no persons In being by whom an sbso
lutte fee In possession can be conveyed p 7 sec H.
viii or
and who such issue win be- in other words until the death
OF the child the absolute power OF alienation Is sus
pended. 1t is suspended however, only for one lie,
or if consider the widows interest as naena
Bile only for two lives and those OF persons
and Tin being the creation of the estate to wit the
death Of the testator. Such suspension, and even
longer, the law allows, sec To- ~ and the coadt,on
ther il be trust or future state, is valid But il is
said this argument proceeds upon the assumption that
the tesator gave the absolute Zee immeas.ey on the
ISSUE whereas the will reads latter the death or
rage my wife and at the death Of such child and
the of the interest title his or her
wife or hus band and that, although this third life es
tate may stricken out for the purpose Of acceleug
Interpreting the testators meaDing it must be cons
dered sHbsistng provision. Even in that view the
correctness OF which, however By no means admit the
the child it given to the issue e his or her death
surviving him or her. and not to the issue left sub
sequent period, TO wt-the death re marriage of a
widowed husband or wife, The happening of the death
of the child settled the ownership of the Fee Tue issue
Of the child then living and If none, the right heirs of
the tesator took Immediately, and the provision for
the third Life estate void and stricken out absolutely
upon the chids death and that Of his or her mother
stead Of being defeated stock effect in the same manner
as If 70 other life estate than the two Hrst had been
created o Sec H. Such is the al provision of the
however and foeseeing from the mperfections of Ian
guage the probably frequent recurrence of other partially
invalid dispositions of property, the Legislature have
lively declared H. T. u.s. Sec general rule, that
conveying authorizing the creation conveyance of
any estate or interest in land, it shall be the duty of
courts of justice to carry into effect the intent of the
parties, so far such intent be collected from
the whole instrument and is consistent with the rules
law" Returning. then, to the share of the son ga
the "limations and conditions" by the :will imposed
upon it Frst-Two successive life estates in his mother
and himself aenabe OF inalienable it matters not
fee at his DEATH to such persons II any, shall then be
his living children or issue or II none to such persons
as shall then be the right heirs of the tesator himself
All the children of the testato and they of we're
his right heirs if his death to be taken the period
Of determining who within the designation were
parties the suit The children of the children already
born also parties Those to be hereafter born and
for agh that appears in the Of events they alone
may be the owners OF the fee were not have
not been and could not have been heard But the decree
in partition it is sad is conclusive and that adudged-
whether by consent adversely does not appear
that with the exception of the life estate in the tesla
tors widow the whole dispositions of the will void
The parties in whose favor contingent interests
were created by the will, and who yet unborn,
is obvious neither were could have BEEN have
they been represented bypares to that suit How then
they, when and if they into being be bound by
S Can it be conended that beneficial expectant
estates lawfully created It'll in the power Of any
persons in possession, who may choose to get up pro-
ceedng in partition, not under paramount but subor
dinate title by cousien, consent acquescence-for
Iectant interests without hearing and without the pos
siby OF being heard, and thus virtually repeal the law
stenceS The partition law, true allows judgment
against unknown owners" with the proviso however
that they be "persons to whom notice shall have
cation as is therein directed" But how can notice be
given by advertisement otherwise to persons be-
iDg9 And how such persons be chargeable with
knowledge implied
and contaminated before their nativity To bind
without to hearing and without notice
and no court will presume unless compelled by terms
admitting of other construction that the Legislature
be defective. it Is said the purchaser is nevertheless
bound to take tin other words persons having
Dgs, and full price is bid as for perfect title the pur
chaser is bound to pay although he receives nothing for
his money such r1ls prevails in tn: English courts,
which very much doubt, 1t certainly has been
adopted here. On the contrary in the of McGown
against wilkins Il Paige R, l2o) it expressly held
that in mortgage and partition suits if the premises are
not sold at the risk of the purchaser ESQ notified at the
tme) he viii not be compelled to complete the purchase
in there should turn be incumbrance or
parties to the partition sale then had not the absolute
title in fee, and as they could convey, whether
greater title than they had the purchaser mr. Lord is
not bound to complete his purchase and the order
tered pro 0ro at special term must he reversed, the
ten per cent paid the sale refunded and the par.
chaser discharged.
Hon. Judges Hmsnds Edwards. and Morris. presiding
MAY 1s George Boscne pai,tiG error The People,
The plaintiff had been convicted at the sessions
charge Of forging checks Of the city banks in
connection with several otherparties.
Mr. Isaac Dayton, counsel for Bowne, moved to quash
the conviction, conendipg that to nd
NIT testimony mot admissible at the time; that it
an to allow evidence of particular facts to prop up
the credibity Of the witness Woodruff after his charac
ter had been impeached, and that it to
clude testimony to show that Woodruff had made pro-
position to another to divide the with him.
on condition Of bis disclosing the name of the man who
had been guilty of the forgery.
The District Attorney Mr. N. B. Blunt, submitted that
there comp evidence Of concert between Rowe
and the prisoner to mako Rowes acts decara-
tions admissible Rowe said he wanted Woodruff go
the bank and draw a check he acts his request and
meets the prisorer and person named Earle; Earle
handed the check to the Witness and the prisoner Bovine
goes to the bank to watch the payment Decision
reserved.