
    Rebecca Gallagher et al., App’lts, v. John McKnight et al., Resp’ts.
    
      (Supreme Court, General Term, First Department
    
    
      Filed July 18, 1890.)
    
    E JECTMEKT — W ILL.
    By the will of one G., who was the common source of title, provision was made for his brother in case of his absolute poverty, and the remainder was given to the children of one Grady and to all testator’s relations on his father’s side that might he in this country. It also expressly cut off from inheritance the wife of his brother and any person in any way related to her by blood or marriage. In an action of ejectment, Held, that plaintiffs, having been expressly cut off, were bound to show intestacy of the testator, which could be accomplished by proof that said Grady had no children and that there were no relatives of testator’s father in the United States at the time of his death.
    
      Appeal from judgment dismissing complaint and from order denying plaintiffs’ motion for new trial.
    
      Wm. Gorman for appl’ts; Jos. Fettretch for resp’ts.
   Brady, J.

This is an action of ejectment for the recovery of the possession of the premises 34 Scammel St. in this city.

The plaintiffs claim to be the widow and only children and heirs at law of one John M. Gallagher who was the only brother and heir at law of James D. Gallagher.

It appeared upon the trial that James D. Gallagher died seized of the premises in dispute about the year 1845, leaving a last will and testament which was admitted to probate on the 29th of January, 1845, and by which he made provision for his widow and gave some specific bequests, and having provided that if his brother John M. Gallagher should be in -want so as not to be able to maintain himself he should be assisted in the manner stated, he gave the remainder equally to the children of John Grady and to all his relations by his father's side that might be in this country (i. e., the United States). He cuts off, to use the language of the will, from inheritance of any thing or property of his, the wife of John M. Gallagher or any person in any way i elated to her by blood or marriage with the exception of her husband, who was his brother, and for whom he had provided as already stated. The vesting of this devise was contingent upon his leaving issue, when the property was to be enjoyed by his wife during life if she should not marry again, then all to his children or child. He left no children and his widow has been dead several years.

The plaintiffs having been expressly cut off by the provisions of the will, it was necessary for them to show the intestacy of the testator, which could be accomplished by proof that John Grady named in his will had no children and that there were no relatives on the side of the testator’s father in the United States on the 16th of April, 1845.

Heither of these facts was satisfactorily established by the evidence, and the circumstances arrayed were not in themselves sufficient to justify the -existence of either of those facts. And this is a complete answer to the action.

It is hardly necessary to say that in actions of this character the plaintiff must recover upon the strength of his own title, Roberts v. Baumgarten, 110 N. Y., 385; 18 N. Y. State Rep., 162, or that the testator being of sound mind had the right to disinherit his brother’s children and descendants by his wife Rebecca Howland v. Union Theological Seminary, 5 N. Y., 217.

The most favorable statement in reference to the evidence given is that it consists altogether of desultory family reminiscences, suggesting much but proving nothing upon which any judgment of a court could for a moment rest.

The judgment must be affirmed.

Daniels, J., concurs.  