In re the Construction of the Will of Healy

22 A.D.2d 868

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 10, 1964
• Status: Published

Opinion

Decree entered August 5, 1964, construing the will, unanimously reversed, on the law, on the facts and in the exercise of discretion, and the petition dismissed on the ground it was an unnecessary exercise of discretion, without costs. The general rule is to refuse to exercise discretion in aid of a construction unless there is a present need therefor. (Matter of Lederer, 4 A D 2d 623, 625.) A Surrogate is not required to consider and determine every question which may be raised by any of the parties as to the construction or validity of a will. (Matter of Mount, 185 N. Y. 162.) Where the construction sought is hypothetical and assumes the nonexercise of a valid testamentary general power of appointment, the need for the construction sought should be clear. (Moore v. Emery, 137 Me. 259; Matter of Sterrett, 300 Pa. 116.) The parties did not fine) it necessary to adduce testimony in aid of the construction sought. Hence, there is not present the possibility of the nonavailability of material testimony as in Matter of Lederer (supra). The petition for construction alleges, that if the doñees of the general testamentary powers of appointment exercise the powers, their estates will be subject to Federal and New York estate taxes. It is asserted the exercise of the powers will be obviated if the will is - construed to give by implication the remainders to the issue of the donees in .’the event of nonexercise of the powers. Reduced to simple terms, the construction requested is in the nature of tax advice to the donees.- “ That is the prpvince of counsel.” (Moore v. Emery, supra, p. 788.) Concur — Rabin, J. P., McNally, Eager, Steuer and Witmer, JJ.