In re the Estate of McKenna

New York Surrogate's Court

In re the Estate of McKenna

164 Misc. 490, 299 N.Y.S. 114, 1937 N.Y. Misc. LEXIS 1812

CourtNew York Surrogate's Court

DecidedAugust 11, 1937

StatusPublished

Cited by1 cases

This text of 164 Misc. 490 (In re the Estate of McKenna) 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 McKenna, 164 Misc. 490, 299 N.Y.S. 114, 1937 N.Y. Misc. LEXIS 1812 (N.Y. Super. Ct. 1937).

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Opinion

Delehanty, S.

Deceased’s will provides for his wife in the following text: “ First, after my lawful debts are paid, I give to my wife, Kate McArdle McKenna, the amount or share of my estate provided by law.” The balance of the estate is given to a grandniece whose husband is named executor of the will.

The executor asks construction of the will and urges that the widow of deceased is deemed to have elected against the will and hence to be entitled to one-half of the estate, the remaining half going to the grandniece. The court holds the contrary. The true meaning of the will is that deceased gave to his wife the share in his estate fixed by section 83 of the Decedent Estate Law. It is incongruous to say that the gift under the will is measured by a statutory right to take against a will.

Submit decree directing distribution of the net estate in the proportions fixed by section 83 of Decedent Estate Law.

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Delehanty, S.

Deceased’s will provides for his wife in the following text: “ First, after my lawful debts are paid, I give to my wife, Kate McArdle McKenna, the amount or share of my estate provided by law.” The balance of the estate is given to a grandniece whose husband is named executor of the will.

The executor asks construction of the will and urges that the widow of deceased is deemed to have elected against the will and hence to be entitled to one-half of the estate, the remaining half going to the grandniece. The court holds the contrary. The true meaning of the will is that deceased gave to his wife the share in his estate fixed by section 83 of the Decedent Estate Law. It is incongruous to say that the gift under the will is measured by a statutory right to take against a will.

Submit decree directing distribution of the net estate in the proportions fixed by section 83 of Decedent Estate Law.

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Bluebook (online)

164 Misc. 490, 299 N.Y.S. 114, 1937 N.Y. Misc. LEXIS 1812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-mckenna-nysurct-1937.

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