Jackson ex dem. Rogers v. Potter

A devise of landspassSian(is acquentiyto^the execution and publication .of the will. And tíon'of awiuj theaSafterffaequired lands, must be made with the same th'e'execution winhe 0ll§wal A devise of •»__A- ...ill Where a per-win in3 isos, estate"and af terwards he-came seised of other lands, sickness,"in that’ Ife*had made a dispohis estate, by he"had 'depo- and that he did not wish eept to ’add eeutor; "this was held not to amount to a repúblicawill, so as to inquired after lands.

THIS was an action of ejectment for 100 acres of land, in the town of Moreau, in the county of Saratoga. The facts in the case were as follows: James Rogers, in his lifetime, was seised in fee of the premises in question, and died so seised, the 3d No. 1 . vember, 1810, leaving two ot the lessors his heirs at law, by Ehsabeth Rogers, the other lessor. On the 19th Ocfober, 1805, he ma(Je his will, which was duly executed, in which, after devising several farms, there were the following clauses: “ Sixthly, I give devise, and bequeath, unto my son, the said waiter, the natural son of the said Elisabeth, otherwise Betsey Arthur, and unto my son Charles, the natural son of my said wife, born before wedlock and to their several and respective heirs and assigns, the rest, residue, and remainder, of all my real estate, whatsoever and wheresoever the same may be, to be equally divided between them, s\iare and share alike: and I do further give and bequeath unto the said Walter5 Charles, and Abby? and to their respective heirs and assigns, all the rest and residue of my personal estate of what natm’e or kind soever, provided I should die, leaving no other child or children; but in case I should die leaving another child or children, then, and in such case, the said rest, residue, and remaiiider of such personal estate, I give and bequeath unto the sa^ ^alter, Charles, and Abby, and such other child or children, and to their respective heirs and assigns, in each case, to be equally divided between them, share and share alike.” The tesiaf:01' did not own the premises at the time of making his will; but aCqUired the same afterwards. After he became seised of the u premises in question, he enclosed the said will in a letter to Susannah Case, in the following words: Ci Mrs. Case, enclosed is my will, which you are requested to keep, and, when it becomes proper to open the same, it must be done in the presence of two of the executors, and eight other persons. James Rogers.” The letter, with the will, was delivered to Mrs. Case, who gave the testator a receipt signed and sealed by her. The letter enclosing the will was not attested by any witness. After acquiring the premises, the testator said to one of the executors, named in the will, “ I have made my will and deposited it with Susannah Case, and have appointed you one of my executors, and wish you to aceept the trust. You will find, enclosed in the will, a memorandum in writing, directing the manner of proceedingwhich memorandum was made at the time the will bears date. After ac- . • • quiring the premises, the testator, also, in his last sickness, on the 2d November, 1810, said that he had made a disposition of all his estate, by will, and had deposited the will with Susannah Case, enclosing a memorandum directing her how to proceed, which was the same as above stated. He also said, that all the alteration he wished to make in the will was to appoint another executor, and wished B. J. Clark to be the person.