Reports of Cases Argued and Determined in the Court of Chancery of the State of New York Volume 1.cAlonzo Christopher Paige
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1830 edition. Excerpt: ...Rep. 319.) Therefore, to prevent a perpetuity, the common law gives to the annuitant an absolute interest; and the effect is precisely the same as that produced by our statute abolishing entails upon a devise of real property in tail. Upon the same principles, a limita-tion over of the annuity upon an indefinite failure of issue is void, as depending upon too remote a contingency. (Ssale v. Scale, P1-ec. in Ch. 421. 1 P. Wms. 290, S. C. Bod-ens v. Watson, Amb. 898, 473. Robinson v. Fitzherbert, 2 Bro. Ch. Rep. 127.) But if the failure of issue is confined to the death of the annuitant, -the limitation over is good, as being in the nature of an executory devise. (Shepherd v. Lessingham, Amb. I22. 13 Ves. 484. 6 Bro. P. C. 318.) The limitation over of the annuity to Mary Theresa is not upon an indefinite failure of issue, but upon the contingency of her dying without issue living at the time of her death. Therefore, upon the principle of the case of Wilkes v. Lyon, (2 Count, 333, ) she is entitled to the same in perpetuity; subject, however, to the contingency of her dying before the other grand daughters, and without issue living at the time of her death. And she is not entitled to the absolute control of the fund set apart for the purpose of raising that annuity, until it is ascertained that the limitation over cannot take place. The $200 annuities to the other grand daughters are also in perpetuity, but the whole goes to the survivor, if either dies in the life time of the other without is sue living at the time of her death. The true construction of the will is, that the executors take the whole estate, with power to sell the same for the purposes of the will; subject, however, to this restriction, that the widow is entitled to the.
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