Clapper v. House

Citations

• 6 Paige Ch. 149
• 1836 N.Y. LEXIS 232
• 1836 N.Y. Misc. LEXIS 52

Syllabus

<p>Where a testator previous to the making of bis will had made a written contract for the purchase of a lot of land and had paid part of the purchase money therefor, and afterwards devised such lot to his daughter in fee, but alter the making of his will paid the residue of the purchase money and took a conveyance of the premises; Held that the conveyance of the legal estate to the testator subsequent to the making of the will, although it was a revocation at law was not so in equity; and that the devisee might file a bill in chancery to restrain the other heir at law from proceeding in an ejectment suit for the lot, and to compel him to release his legal title thereto which in equity he held as a mere trustee for her.</p> <p>In the case of a mere equitable devise, where the legal estate descends to the heir as trustee for the equitable devisee, a feigned issue is not absolutely necessary to enable the court of chancery to make a decree to carry such devise into effect. In a case of that kind, if the heir at law wishes a feigned issue, for the purpose of contesting the validity of the will before a jury, he must ask for it at the hearing; as that is the proper time to ask for an issue if either partydesires it.</p> <p>Where a decree of the vice chancellor is appealed from after it has been enrolled and such decree is subsequently affirmed, if the decree of affirmance directs the proceedings to be remitted to the vice chancellor, such decree must be added to the original enrolment in the clerk’s office and must be signed by the vice chancellor. But where the proceedings are not remitted to the vice chancellor, the original enrolment must be transmitted to the register or assistant register with whom the decree of affirmance is entered, and such decree must be added to the enrolment of the original decree, and must be signed by the chancellor.</p>