In re the Construction of the Will of Orr

Appellate Division of the Supreme Court of New York

In re the Construction of the Will of Orr

275 A.D.2d 702

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

DecidedMarch 29, 1949

StatusPublished

This text of 275 A.D.2d 702 (In re the Construction of the Will of Orr) 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 Orr, 275 A.D.2d 702 (N.Y. Ct. App. 1949).

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Opinion

Callahan and Yan Yoorhis, JJ.

(dissenting). We dissent and vote to reverse the decree appealed from so as to construe subdivision “ c ” of paragraph “ Fourteenth ” of the will of Jennie Orr, deceased, as giving the remainder of the trust therein created to the issue of the lifetime income beneficiary, Robert M. Dunham, such gift to take effect as of the date of the death of the testator, not to be subject to being divested by the death of such issue prior to the death of Robert M. Dunham; and sustaining the right of appellants to receive the remainder under their assignments from Donald O. Dunham (Matter of McParlan, 169 Misc. 1028; Matter of Embree, 9 App. Div. 602, affd. 154 N. Y. 778; Doe ex dem. Barnes v. Provoost, 4 Johns. 61; Moore v. Lyons, 25 Wend. 119, 144; Livingston v. Greene, 52 N. Y. 118, 123; Nelson v. Russell, 135 N. Y. 137, 140-141; Connelly v. O’Brien, 166 N. Y. 406, 408; Matter of Bump, 234 N. Y. 60, 65; Matter of Watson, 262 N. Y. 284; 7 Heaton on Surrogates’ Courts, §§ 571, 572; 69 C. J., Wills, § 1730, p. 641).

Peck, P. J., Glennon and Shientag, JJ., concur in decision; Callahan and Yan Yoorhis, JJ., dissent in opinion.

Decree affirmed, with costs. No opinion. [192 Misc. 608.]

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Callahan and Yan Yoorhis, JJ.

(dissenting). We dissent and vote to reverse the decree appealed from so as to construe subdivision “ c ” of paragraph “ Fourteenth ” of the will of Jennie Orr, deceased, as giving the remainder of the trust therein created to the issue of the lifetime income beneficiary, Robert M. Dunham, such gift to take effect as of the date of the death of the testator, not to be subject to being divested by the death of such issue prior to the death of Robert M. Dunham; and sustaining the right of appellants to receive the remainder under their assignments from Donald O. Dunham (Matter of McParlan, 169 Misc. 1028; Matter of Embree, 9 App. Div. 602, affd. 154 N. Y. 778; Doe ex dem. Barnes v. Provoost, 4 Johns. 61; Moore v. Lyons, 25 Wend. 119, 144; Livingston v. Greene, 52 N. Y. 118, 123; Nelson v. Russell, 135 N. Y. 137, 140-141; Connelly v. O’Brien, 166 N. Y. 406, 408; Matter of Bump, 234 N. Y. 60, 65; Matter of Watson, 262 N. Y. 284; 7 Heaton on Surrogates’ Courts, §§ 571, 572; 69 C. J., Wills, § 1730, p. 641).

Peck, P. J., Glennon and Shientag, JJ., concur in decision; Callahan and Yan Yoorhis, JJ., dissent in opinion.

Decree affirmed, with costs. No opinion. [192 Misc. 608.]

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