In re the Estate of Alexander

449 N.E.2d 412, 58 N.Y.2d 1066, 462 N.Y.S.2d 632, 1983 N.Y. LEXIS 2996

• Court: New York Court of Appeals
• Decided: March 30, 1983
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and the decree of the Surrogate’s Court, Monroe County, construing decedent’s will reinstated.

Decedent was survived by three children, a son from a marriage that ended in divorce and two daughters from a second marriage. Within 10 separate provisions of his will, decedent disposed of his property and provided for administration of his estate making specific grants in express, particular, and consistent terms. In the will’s residuary clause decedent directed that the remainder of his estate “be divided into equal shares, making one share for each of my daughters,” it being further provided that out of this remainder one daughter should receive specific real property, if and only if the two shares could remain equal in value. The clause’s final sentence, however, provides “[i]n respect to each of my children living at my death, I give, devise and bequeath one such share to each such child.”

Decedent’s intent in devising and bequeathing shares of his residuary estate, as viewed within the context of the entire will, was that his daughters and not his son should share the residuary estate. This is evidenced by the residuary clause’s repeated and exclusive nominal references to decedent’s daughters. The final sentence, although containing what may be read as an inconsistent proviso, is nothing more than an inartful and superfluous attempt to summarize the distribution of decedent’s residuary estate.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur in memorandum.

Order reversed, etc. '

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