In re the Construction of the Will of Kittelberger

Appellate Division of the Supreme Court of New York

In re the Construction of the Will of Kittelberger

2 A.D.2d 805, 153 N.Y.S.2d 274, 1956 N.Y. App. Div. LEXIS 4592

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

DecidedJuly 13, 1956

StatusPublished

This text of 2 A.D.2d 805 (In re the Construction of the Will of Kittelberger) 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 Construction of the Will of Kittelberger, 2 A.D.2d 805, 153 N.Y.S.2d 274, 1956 N.Y. App. Div. LEXIS 4592 (N.Y. Ct. App. 1956).

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Opinion

Decree affirmed, with costs to all parties filing briefs payable out of the estate. Memorandum: Upon our review of this record we conclude that the decree appealed from correctly construes the will of the deceased and should be affirmed. We have not overlooked the argument presented at Point V of the brief of Bertch as appellant with reference to his cross appeal. While we conclude that the decretal provision that the executor is obliged to negotiate with Bertch is legally correct, we are aware that the necessity for such construction may be doubtful at the present time as it appears from the record that negotiations have already taken place and have culminated in a written agreement. We are not convinced, however, that the decree should be amended or modified as requested. There is already pending before the Surrogate a proceeding seeking approval of such agreement and obviously the legality of that agreement is not before us upon this appeal. Any interested party, of course, has the right to take such action as advised to bring that matter to a conclusion. All concur. (Cross appeals from a decree of Monroe Surrogate’s Court, construing portions of a will.) Present — MeCum, P. J., Kimball, Wheeler, Williams and Bastow, JJ.

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Decree affirmed, with costs to all parties filing briefs payable out of the estate. Memorandum: Upon our review of this record we conclude that the decree appealed from correctly construes the will of the deceased and should be affirmed. We have not overlooked the argument presented at Point V of the brief of Bertch as appellant with reference to his cross appeal. While we conclude that the decretal provision that the executor is obliged to negotiate with Bertch is legally correct, we are aware that the necessity for such construction may be doubtful at the present time as it appears from the record that negotiations have already taken place and have culminated in a written agreement. We are not convinced, however, that the decree should be amended or modified as requested. There is already pending before the Surrogate a proceeding seeking approval of such agreement and obviously the legality of that agreement is not before us upon this appeal. Any interested party, of course, has the right to take such action as advised to bring that matter to a conclusion. All concur. (Cross appeals from a decree of Monroe Surrogate’s Court, construing portions of a will.) Present — MeCum, P. J., Kimball, Wheeler, Williams and Bastow, JJ.

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2 A.D.2d 805, 153 N.Y.S.2d 274, 1956 N.Y. App. Div. LEXIS 4592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-construction-of-the-will-of-kittelberger-nyappdiv-1956.