Ametrano v. Downs , 67 N.Y.S. 128 ( 1900 )

Gaynor, J.:

The plaintiff contends that the specific devise to her of the testator’s one half interest in the lot of land mentioned in the will gives her the proceeds thereof received by the testator from the City of New York under the condemnation proceedings by which the said city took the title after the making of the will. Where a testator sells real estate which he has previously devised by his will, such devise is thereby revoked (McNaughton v. McNaughton, 34 N. Y. 201; Burnham v. Comfort, 108 N. Y. 535). The distinction in the present case is that the testator did not sell the land, but it was compulsorily taken from her by proceedings under the eminent domain power of the state. I do not know that the question thus presented has been decided in this state, but in England it has been held that the rule of revocation applies in such case the same as in the case of a voluntary sale; or, more closely speaking, that the devise becomes wholly inoperative (Jarman, p. 129). And the rule is the same with us, no doubt. Our statute in relation to wills does not meet the case.

Judgment accordingly, with costs to each side.