In re the Construction of the Will of Maybaum

Appellate Division of the Supreme Court of New York

In re the Construction of the Will of Maybaum

270 A.D. 1028, 63 N.Y.S.2d 85, 1946 N.Y. App. Div. LEXIS 5206

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

DecidedJune 17, 1946

StatusPublished

This text of 270 A.D. 1028 (In re the Construction of the Will of Maybaum) 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 Maybaum, 270 A.D. 1028, 63 N.Y.S.2d 85, 1946 N.Y. App. Div. LEXIS 5206 (N.Y. Ct. App. 1946).

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Opinion

Proceeding to obtain construction of a will. Decree of the Surrogate’s Court, Kings County, modified on the law (1) by striking from the first ordering paragraph the words “ during her lifetime ” and “ with payment of the balance, if any, upon her death to her son, Joseph Goodheart”; (2) by striking out the second ordering paragraph, and (3) by striking the word “not” from the third ordering paragraph. As so modified, the decree, insofar as appealed from, is unanimously affirmed, with costs to the appellant, payable out of the estate. The will divided the residuary estate into three parts, one part consisting of 60% thereof, which the testator gave to the appellant, directing his executor to pay the same to her in monthly payments of $35. The will further provided that, if. appellant died before her 60% share was paid to her, “the balance of her share remaining is to be paid to her son * * The son predeceased the testator. In our opinion the gift to the appellant was absolute (except as modified by the provision for monthly payments), and the subsequent provision in her son’s favor failed to show clearly or unmistakably that the testator intended to cut the appellant’s gift down to a life estate. (Tillman v. Ogren, 227 N. Y. 495; Matter of Forde, 286 N. Y. 125; see, also, 75 A. L. R. 71.) Such a construction avoids the partial intestacy which would be caused by the lapse of the attempted gift to appellant’s son and is, therefore, to be favored. (Cf. Wright v. Wright, 225 N. Y. 329.) Present — Lewis, P. J., Carswell, Adel, Aldrich and Nolan, JJ.

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Proceeding to obtain construction of a will. Decree of the Surrogate’s Court, Kings County, modified on the law (1) by striking from the first ordering paragraph the words “ during her lifetime ” and “ with payment of the balance, if any, upon her death to her son, Joseph Goodheart”; (2) by striking out the second ordering paragraph, and (3) by striking the word “not” from the third ordering paragraph. As so modified, the decree, insofar as appealed from, is unanimously affirmed, with costs to the appellant, payable out of the estate. The will divided the residuary estate into three parts, one part consisting of 60% thereof, which the testator gave to the appellant, directing his executor to pay the same to her in monthly payments of $35. The will further provided that, if. appellant died before her 60% share was paid to her, “the balance of her share remaining is to be paid to her son * * The son predeceased the testator. In our opinion the gift to the appellant was absolute (except as modified by the provision for monthly payments), and the subsequent provision in her son’s favor failed to show clearly or unmistakably that the testator intended to cut the appellant’s gift down to a life estate. (Tillman v. Ogren, 227 N. Y. 495; Matter of Forde, 286 N. Y. 125; see, also, 75 A. L. R. 71.) Such a construction avoids the partial intestacy which would be caused by the lapse of the attempted gift to appellant’s son and is, therefore, to be favored. (Cf. Wright v. Wright, 225 N. Y. 329.) Present — Lewis, P. J., Carswell, Adel, Aldrich and Nolan, JJ.

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Bluebook (online)

270 A.D. 1028, 63 N.Y.S.2d 85, 1946 N.Y. App. Div. LEXIS 5206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-construction-of-the-will-of-maybaum-nyappdiv-1946.

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