In re the Construction of the Will of Alsop

Appellate Division of the Supreme Court of New York

In re the Construction of the Will of Alsop

13 A.D.2d 897, 215 N.Y.S.2d 598, 1961 N.Y. App. Div. LEXIS 10803

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

DecidedMay 18, 1961

StatusPublished

This text of 13 A.D.2d 897 (In re the Construction of the Will of Alsop) 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.

Bluebook

In re the Construction of the Will of Alsop, 13 A.D.2d 897, 215 N.Y.S.2d 598, 1961 N.Y. App. Div. LEXIS 10803 (N.Y. Ct. App. 1961).

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Opinion

— Decree unanimously reversed on the law and facts, without costs of this appeal to any party, and matter remitted to the Surrogate’s Court for further proceedings in accordance with the memorandum. Memorandum: The will of Grace S. Alsop was admitted to probate by the Surrogate of Onondaga County on October 9, 1958. At the time of her death she resided at 432 East Manlius Street in the Village of East Syracuse, New York. She owned the entire interest in two parcels on that street adjacent to the premises in which she had lived, but as to that house and two located to the east thereof she owned an undivided 81.25% interest. She made a number of specific bequests and in the nineteenth clause of her will directed her executors to keep the old family homestead in the family and in the event of sale to give preference to her great nephew, Wilbur Galster, in the purchase of the premises. The residuary clause directed the executors to sell for the purpose either of partition and division among the legatees or to pay the legacies. The debts and one half of the specific légacies have been paid. The executor elected to sell the real property. The Surrogate construed the will to mean that the executor must sell the parcels together if that would produce the highest price and need only offer Galster the opportunity to purchase all the parcels. We hold that under the will an opportunity must be afforded Galster to purchase the homestead property alone. If his offer equals or exceeds that bid by anyone else the sale must be made to him of the testatrix’ interest in the homestead property. Galster should not be required to bid on the five parcels of land as part of the exercise of his preference. The Surrogate should enter a decree construing the will in accordance [898]*898with this memorandum and should proceed with the sale of the property accordingly. We do not pass upon the allowances made by the Surrogate. (Appeal from decree of Onondaga Surrogate’s Court construing the will of testatrix in reference to direction for sale of certain realty.) Present — Bastow, J. P., Goldman, Halpern, McClusky and Henry, JJ. [24 Mise 2d 50.]

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— Decree unanimously reversed on the law and facts, without costs of this appeal to any party, and matter remitted to the Surrogate’s Court for further proceedings in accordance with the memorandum. Memorandum: The will of Grace S. Alsop was admitted to probate by the Surrogate of Onondaga County on October 9, 1958. At the time of her death she resided at 432 East Manlius Street in the Village of East Syracuse, New York. She owned the entire interest in two parcels on that street adjacent to the premises in which she had lived, but as to that house and two located to the east thereof she owned an undivided 81.25% interest. She made a number of specific bequests and in the nineteenth clause of her will directed her executors to keep the old family homestead in the family and in the event of sale to give preference to her great nephew, Wilbur Galster, in the purchase of the premises. The residuary clause directed the executors to sell for the purpose either of partition and division among the legatees or to pay the legacies. The debts and one half of the specific légacies have been paid. The executor elected to sell the real property. The Surrogate construed the will to mean that the executor must sell the parcels together if that would produce the highest price and need only offer Galster the opportunity to purchase all the parcels. We hold that under the will an opportunity must be afforded Galster to purchase the homestead property alone. If his offer equals or exceeds that bid by anyone else the sale must be made to him of the testatrix’ interest in the homestead property. Galster should not be required to bid on the five parcels of land as part of the exercise of his preference. The Surrogate should enter a decree construing the will in accordance [898]*898with this memorandum and should proceed with the sale of the property accordingly. We do not pass upon the allowances made by the Surrogate. (Appeal from decree of Onondaga Surrogate’s Court construing the will of testatrix in reference to direction for sale of certain realty.) Present — Bastow, J. P., Goldman, Halpern, McClusky and Henry, JJ. [24 Mise 2d 50.]

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13 A.D.2d 897, 215 N.Y.S.2d 598, 1961 N.Y. App. Div. LEXIS 10803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-construction-of-the-will-of-alsop-nyappdiv-1961.