In re the Estate of Dunn

New York Surrogate's Court

In re the Estate of Dunn

7 Mills Surr. 175, 63 Misc. 180, 118 N.Y.S. 561

DecidedApril 15, 1909

StatusPublished

This text of 7 Mills Surr. 175 (In re the Estate of Dunn) 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 Estate of Dunn, 7 Mills Surr. 175, 63 Misc. 180, 118 N.Y.S. 561 (N.Y. Super. Ct. 1909).

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Opinion

Thomas, S.

Among the supplementary papers submitted by the parties, which reached me after the filing of my previous memorandum of decision, I find a copy of the will of the decedent. An examination of that will satisfies me 'that it is not at 'all clear that the real property in question was devised to the •two children of the decedent as tenants in common, as alleged in the petition in this proceeding, and that it may be that a proper construction of the paper requires the conclusion that the’ devise was to the executors for purposes of sale, coupled with a mandatory power to sell and divide the proceeds, thus leaving the legal title in the executors, bound by trusts, in all respects as if it had forthwith been converted into personalty. This question is before the Supreme Court for decision in the [176]*176pending action for partition, and I should not upon this summary application to revoke the letters cum testamento armexo •of the administratrix with the will annexed embarrass that tribunal by .attempting to pass upon it. The proceeding will therefore be dismissed, without prejudice to renewal thereof -after the termination of that action.

Proceeding dismissed.

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Thomas, S.

Among the supplementary papers submitted by the parties, which reached me after the filing of my previous memorandum of decision, I find a copy of the will of the decedent. An examination of that will satisfies me 'that it is not at 'all clear that the real property in question was devised to the •two children of the decedent as tenants in common, as alleged in the petition in this proceeding, and that it may be that a proper construction of the paper requires the conclusion that the’ devise was to the executors for purposes of sale, coupled with a mandatory power to sell and divide the proceeds, thus leaving the legal title in the executors, bound by trusts, in all respects as if it had forthwith been converted into personalty. This question is before the Supreme Court for decision in the [176]*176pending action for partition, and I should not upon this summary application to revoke the letters cum testamento armexo •of the administratrix with the will annexed embarrass that tribunal by .attempting to pass upon it. The proceeding will therefore be dismissed, without prejudice to renewal thereof -after the termination of that action.

Proceeding dismissed.

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Bluebook (online)

7 Mills Surr. 175, 63 Misc. 180, 118 N.Y.S. 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-dunn-nysurct-1909.