Howell Edmunds Jackson

Name: Hardenbergh v. Ray — Opinion of the Court
Author: Howell Edmunds Jackson

Hardenbergh v. Ray — Opinion of the Court

Summary

“Hardenbergh v. Ray — Opinion of the Court”, is a work by Howell Edmunds Jackson. It explores elements such as testator, real estate and statute.

Quotes from Hardenbergh v. Ray — Opinion of the Court (Howell Edmunds Jackson)

Howell Edmunds Jackson, Hardenbergh v. Ray — Opinion of the Court

“ In respect to the question of testamentary power of disposition over real estate, the Missouri act adopted by the territorial government, and re-enacted by the state of Oregon, was unquestionably intended to be as broad and comprehensive as the Virginia act of 1785, which conferred the testamentary power to devise after-acquired land, and was more comprehensive than the prior act of 1844, taken from the Iowa statute. As already stated, the language of the statute makes no distinction between personalty and realty. It confers the power to dispose of the realty as broadly as the personalty. ”

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Howell Edmunds Jackson, Hardenbergh v. Ray — Opinion of the Court

“ We think not. The language now used does not required such a construction at our hands. It is different from the English statute of wills. The testamentary power is given here in general language. It embraces both real and personal property, and is a power to make testamentary disposition of all the testator's property, without any distinction between real and personal property, and not a mere power of particular disposition. It is more in the nature of a Roman will than an English devise of real property. ”

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Source: Wikisource

Howell Edmunds Jackson, Hardenbergh v. Ray — Opinion of the Court

“ The reason given for the distinction between real and personal estate was that a devise of land was regarded in the same light as a conveyance, and, as a conveyance at common law would not vest for want of seisin, it was therefore held to be operative only on such real estate as the testator might have at the time of the making of the will,-that is to say, that a devise was in the nature of a conveyance or appointment of real estate then owned, to take effect at a future date, and could not, therefore, operate on future acquisitions. ”

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Source: Wikisource

Howell Edmunds Jackson, Hardenbergh v. Ray — Opinion of the Court

“ The remaining question is whether, by the third and last clause of his will, the testator intended to dispose of all the real estate in Oregon, or elsewhere, of which he might die seised and possessed.
The cardinal rule for the construction of wills, to which all other rules must bend, as stated by Chief Justice Marshall in Smith v. Bell, 6 Pet. 68, is that 'the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. This principle is generally asserted in the construction of every testamentary disposition. ”

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Source: Wikisource

Howell Edmunds Jackson, Hardenbergh v. Ray — Opinion of the Court

“ This disposition, residuary in its character, is utterly inconsistent with an intention to die intestate as to any portion of his estate, real or personal. When the words of the will of a testator will fairly carry, as in the present case, the whole estate of which he dies seized and possessed, there is no presumption of an intention to die intestate as to any part of his property. ”

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Source: Wikisource

Howell Edmunds Jackson, Hardenbergh v. Ray — Opinion of the Court

“ The saving to the widow her dower is itself indicative of an intention to make the will speak as of the date of the testator's death, at which time the widow's right of dower would come into actual possession and practical enjoyment, whether the dower right extended to all lands owned during coverture or possessed by the husband at his death. ”

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Source: Wikisource

Howell Edmunds Jackson, Hardenbergh v. Ray — Opinion of the Court

“ Be it enacted by the council and the house of representatives of the territory of Iowa, that any person having an estate in any lands, tenements, or hereditaments, or any annuity or rent charged upon, or issuing out of the same, or any goods or chattels, rights, credits, and choses in action, or in possession, and property of every description, whatever, may give or devise the same to any person by last will and testament by him or her lawfully executed.' Laws of the First Session of the Legislative Assembly of the Territory of Iowa, 1838-39, p. ”

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Source: Wikisource

Howell Edmunds Jackson, Hardenbergh v. Ray — Opinion of the Court

“ When the original suit was brought against Sliter, Miller, and West, the persons in possession, the court acquired jurisdiction of the controversy, and no subsequent change of the parties could affect that jurisdiction. This is well settled by the authorities. Mollan v. Torrance, 9 Wheat. 537; Dunn v. Clarke, 8 Pet. 1 ”

Howell Edmunds Jackson

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