In re the Accounting of Post

Appellate Division of the Supreme Court of New York

In re the Accounting of Post

18 A.D.2d 795, 237 N.Y.S.2d 43, 1963 N.Y. App. Div. LEXIS 4570

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 24, 1963

StatusPublished

This text of 18 A.D.2d 795 (In re the Accounting of Post) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Accounting of Post, 18 A.D.2d 795, 237 N.Y.S.2d 43, 1963 N.Y. App. Div. LEXIS 4570 (N.Y. Ct. App. 1963).

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Opinion

unanimously modified, on the law and the facts, either to conform the amounts of the reduced legacies to those proposed by the attorney for the executor hy affidavit dated May 24, 1962, subject only to further adjustment because of increases or decreases since the account was filed, or to remand, if the parties are so advised, to the Surrogate to settle contested adjustments in accordance with his prior decision, and the decree is otherwise affirmed, with costs to all parties submitting briefs payable out of the estate. On the authority of Matter of Matthews (255 App. Div. 80, affd. 279 N. Y. 732), the trust for the widow is subject to invasion for the testator’s sister and, consequently, the widow’s election to take her intestate share under the statute is not precluded. However, there is a variance, as urged by remainder-man appellant, between the legacies as proposed to be reduced in the affidavit of adjustment, to which there was no objection, and the distribution decreed. The executor does not explain the variance. Settle order on notice. Concur — Botein, P. J., Breitel, McNally, Stevens and Eager, JJ.

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unanimously modified, on the law and the facts, either to conform the amounts of the reduced legacies to those proposed by the attorney for the executor hy affidavit dated May 24, 1962, subject only to further adjustment because of increases or decreases since the account was filed, or to remand, if the parties are so advised, to the Surrogate to settle contested adjustments in accordance with his prior decision, and the decree is otherwise affirmed, with costs to all parties submitting briefs payable out of the estate. On the authority of Matter of Matthews (255 App. Div. 80, affd. 279 N. Y. 732), the trust for the widow is subject to invasion for the testator’s sister and, consequently, the widow’s election to take her intestate share under the statute is not precluded. However, there is a variance, as urged by remainder-man appellant, between the legacies as proposed to be reduced in the affidavit of adjustment, to which there was no objection, and the distribution decreed. The executor does not explain the variance. Settle order on notice. Concur — Botein, P. J., Breitel, McNally, Stevens and Eager, JJ.

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Bluebook (online)

18 A.D.2d 795, 237 N.Y.S.2d 43, 1963 N.Y. App. Div. LEXIS 4570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-accounting-of-post-nyappdiv-1963.

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