In re Gunther

230 A.D. 741

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1930
• Status: Published

Opinion

Decree of the Surrogate’s Court of Queens county, in so far as appealed from, reversed upon the law and the facts, with costs to each party appearing, payable out of the estate, and it is directed that the decree to be entered shall provide that the vacant lot on Eighth avenue, adjoining the southwest corner of Astoria and Eighth avenues, shall pass under paragraph 6 of the will. The lot in question is not located at the southwest corner of Astoria and Eighth avenues; it is an inside lot located on Eighth avenue, and, therefore, does not pass under the language “ southwesterly comer of Astoria and Eighth Avenues,” contained in paragraph 4 of the will. To so hold would be to burden the trust estate created for the benefit of the widow with the carrying charges of vacant property in a manner inconsistent with the general testamentary purpose to provide income for the widow and her three children and would violate the rule that provisions of a will should be liberally construed in favor of the widow. (Moffett v. Elmendorf, 152 N. Y. 475, 487; Matter of Toiler, 147 App. Div. 741; affd., 205 N. Y. 599.) The proceeding is remitted to the Surrogate’s Court of Queens county for further action in accordance with this decision. Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ., concur.