In re the Estate of Malecki

Appellate Division of the Supreme Court of New York

In re the Estate of Malecki

79 A.D.2d 799, 435 N.Y.S.2d 112, 1980 N.Y. App. Div. LEXIS 14205

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

DecidedDecember 24, 1980

StatusPublished

This text of 79 A.D.2d 799 (In re the Estate of Malecki) 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.

Bluebook

In re the Estate of Malecki, 79 A.D.2d 799, 435 N.Y.S.2d 112, 1980 N.Y. App. Div. LEXIS 14205 (N.Y. Ct. App. 1980).

Pincite

Opinion

Appeal from a decree of the Surrogate’s Court of Schenectady County, entered December 7, 1979, which construed the terms of decedent’s will. At issue in this construction proceeding is the applicability of the antilapse statute (EPTL 3-3.3). Petitioner, a sister of the testatrix, maintains that the qualification “Unless the will provides otherwise” (EPTL 3-3.3, subd [a]) was met so as to defeat such application, but we fully agree with the Surrogate’s rejection of her contention. The specific and residuary gifts favoring respondents’ father, a brother of the testatrix who was living at the time the will was executed, do not require that he survive the testatrix and no alternative disposition was made in the event he should predecease her. Furthermore, although the instrument contains a separate bequest to respondents, there is no indication the testatrix meant to set a limit on what they might receive under the will (compare Matter of Carleton, 3 Misc 2d 677 with Matter of Rosenthal, 185 Misc 168). Neither expressly nor by implication did the testatrix manifest any direction at odds with the statutory mandate and, therefore, the Surrogate correctly applied it in construing her will. Decree affirmed, with costs to all parties payable out of the estate. Mahoney, P. J., Sweeney, Kane, Main and Casey, JJ., . concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal from a decree of the Surrogate’s Court of Schenectady County, entered December 7, 1979, which construed the terms of decedent’s will. At issue in this construction proceeding is the applicability of the antilapse statute (EPTL 3-3.3). Petitioner, a sister of the testatrix, maintains that the qualification “Unless the will provides otherwise” (EPTL 3-3.3, subd [a]) was met so as to defeat such application, but we fully agree with the Surrogate’s rejection of her contention. The specific and residuary gifts favoring respondents’ father, a brother of the testatrix who was living at the time the will was executed, do not require that he survive the testatrix and no alternative disposition was made in the event he should predecease her. Furthermore, although the instrument contains a separate bequest to respondents, there is no indication the testatrix meant to set a limit on what they might receive under the will (compare Matter of Carleton, 3 Misc 2d 677 with Matter of Rosenthal, 185 Misc 168). Neither expressly nor by implication did the testatrix manifest any direction at odds with the statutory mandate and, therefore, the Surrogate correctly applied it in construing her will. Decree affirmed, with costs to all parties payable out of the estate. Mahoney, P. J., Sweeney, Kane, Main and Casey, JJ., . concur.

Cite This Page — Counsel Stack

Bluebook (online)

79 A.D.2d 799, 435 N.Y.S.2d 112, 1980 N.Y. App. Div. LEXIS 14205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-malecki-nyappdiv-1980.

Opinion

Related

Cite This Page — Counsel Stack