In re the Construction of the Will of Tetervin

New York Surrogate's Court

In re the Construction of the Will of Tetervin

14 Misc. 2d 1050, 179 N.Y.S.2d 636, 1958 N.Y. Misc. LEXIS 2593

DecidedOctober 3, 1958

StatusPublished

This text of 14 Misc. 2d 1050 (In re the Construction of the Will of Tetervin) is published on Counsel Stack Legal Research, covering New York Surrogate's Court 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 Tetervin, 14 Misc. 2d 1050, 179 N.Y.S.2d 636, 1958 N.Y. Misc. LEXIS 2593 (N.Y. Super. Ct. 1958).

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Opinion

Maximilian- Moss, S.

This proceeding instituted by the executors and trustees is for the construction of paragraphs “ Second ”, “ Third ” and “ Fifth ” of testator’s will. Testator died December 11, 1957 leaving a will dated August 5, 1952. By paragraph “ Second ” of his will testator devised to Gertrude Berlin the real property therein described, and by paragraph “ Fifth ” devised and bequeathed to her one third of his estate. Petitioners allege that they are not certain as to the precise meaning of said provisions and for that reason are unable to set up a trust created for the benefit of testator’s widow with remainder to his son under paragraph ‘ ‘ Sixth ’ ’ of the will. The primary controversy is whether the gift to Gertrude Berlin by paragraph “ Fifth ” is in addition to the devise and bequest given to her under paragraphs “Second” and “Third” of testator’s will, and whether they are specific or general gifts.

The court holds that the language of the provisions in question clearly manifests testator’s intention to give to Gertrude Berlin “absolutely and forever” his real property described in paragraph “Second”, his household furniture under paragraph ‘ ‘ Third ’ ’ and in addition, a third interest in his residuary estate under paragraph “ Fifth ”,

[1051]*1051The devise of testator’s described real property under paragraph “ Second ” and bequest of his household furniture under paragraph “ Third ” to Gertrude Berlin are specific (Crawford v. McCarthy, 159 N. Y. 514, 519; Matter of Chertow, 109 N. Y. S. 2d 567, 570). Title thereto passed to her and she became entitled to the possession, rents and income therefrom beginning from the date of testator’s death (Matter of Schwartz, 2 Misc 2d 542; Matter of Englese, 140 N. Y. S. 2d 637, 639). The gifts to her under paragraph “ Fifth ” are general, subject to the payment of debts, funeral and administration expenses (see 6 Jessup-Redfield, Surrogate’s Law and Practice, § 4737).

Settle decree on notice.

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Maximilian- Moss, S.

This proceeding instituted by the executors and trustees is for the construction of paragraphs “ Second ”, “ Third ” and “ Fifth ” of testator’s will. Testator died December 11, 1957 leaving a will dated August 5, 1952. By paragraph “ Second ” of his will testator devised to Gertrude Berlin the real property therein described, and by paragraph “ Fifth ” devised and bequeathed to her one third of his estate. Petitioners allege that they are not certain as to the precise meaning of said provisions and for that reason are unable to set up a trust created for the benefit of testator’s widow with remainder to his son under paragraph ‘ ‘ Sixth ’ ’ of the will. The primary controversy is whether the gift to Gertrude Berlin by paragraph “ Fifth ” is in addition to the devise and bequest given to her under paragraphs “Second” and “Third” of testator’s will, and whether they are specific or general gifts.

The court holds that the language of the provisions in question clearly manifests testator’s intention to give to Gertrude Berlin “absolutely and forever” his real property described in paragraph “Second”, his household furniture under paragraph ‘ ‘ Third ’ ’ and in addition, a third interest in his residuary estate under paragraph “ Fifth ”,

[1051]*1051The devise of testator’s described real property under paragraph “ Second ” and bequest of his household furniture under paragraph “ Third ” to Gertrude Berlin are specific (Crawford v. McCarthy, 159 N. Y. 514, 519; Matter of Chertow, 109 N. Y. S. 2d 567, 570). Title thereto passed to her and she became entitled to the possession, rents and income therefrom beginning from the date of testator’s death (Matter of Schwartz, 2 Misc 2d 542; Matter of Englese, 140 N. Y. S. 2d 637, 639). The gifts to her under paragraph “ Fifth ” are general, subject to the payment of debts, funeral and administration expenses (see 6 Jessup-Redfield, Surrogate’s Law and Practice, § 4737).

Settle decree on notice.

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14 Misc. 2d 1050, 179 N.Y.S.2d 636, 1958 N.Y. Misc. LEXIS 2593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-construction-of-the-will-of-tetervin-nysurct-1958.

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