In re the Estate of Friedman

19 Misc. 2d 204, 191 N.Y.S.2d 851, 1959 N.Y. Misc. LEXIS 3169

Opinion

S. Samuel Di Falco, S.

The testamentary plan of this decedent was to bequeath certain stated amounts to named charities and to distribute the balance of his estate among a number of individuals all but one of whom were related to him. This distribution was accomplished by bequests of general legacies to these persons and by a direction that the residuary estate be divided equally among such general legatees. Subsequent to the execution of his will, the testator executed a codicil which provided general legacies to a grandnephew and a grandniece and the question now is raised as to the right of the legatees under the codicil to share in the residuary estate.

The court finds the instant testamentary scheme to be quite analogous to the one considered in Matter of Phelps (133 Misc. 450) and the rationale of that opinion is applicable to the present facts. Here the general legacies to individuals in the will were provided for in 10 separate paragraphs and the only effect of the codicil was to insert an additional paragraph containing two general legacies. The court reads the will and codicil together as if they constituted a single instrument with all the money legacies in both the original will and the codicil preceding the residuary clause. It is concluded that the legatees taking under the codicil are among the residuary legatees.

Submit decree on notice construing the will and settling the account.