In re the Estate of Murphy

Appellate Division of the Supreme Court of New York

In re the Estate of Murphy

11 A.D.3d 947, 784 N.Y.S.2d 760, 2004 N.Y. App. Div. LEXIS 11265

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

DecidedOctober 1, 2004

StatusPublished

This text of 11 A.D.3d 947 (In re the Estate of Murphy) 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 Murphy, 11 A.D.3d 947, 784 N.Y.S.2d 760, 2004 N.Y. App. Div. LEXIS 11265 (N.Y. Ct. App. 2004).

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Opinion

Appeal from a decree of the Surrogate’s Court, Steuben County (Marianne Furfure, S.), entered June 13, 2003. The [948]*948decree determined that the fifth and tenth articles of decedent’s will lapsed in their entirety and are not saved by the anti-lapse statute and construed the tenth article of the will as an unconditional bequest to respondent Evelyn Beckman.

It is hereby ordered that the decree so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: In this proceeding petitioners, coexecutors of the estate of Mildred B. Murphy (testatrix), seek judicial construction of articles fifth and tenth of her will, which •..respectively bequeath a parcel of real estate and half of the residuary estate to Clair Manning (Manning). Manning, a son born out of wedlock to the testatrix and subsequently adopted by nonrelatives, predeceased the testatrix. Connie Morral, Frances K. Rice, Jim W Manning and David C. Manning (Manning respondents) are the children of Manning.

The Surrogate properly determined that the bequests to Manning lapsed due to his death and are not saved by the anti-lapse statute (EPTL 3-3.3 [a] [1]) and that respondent Evelyn Beck-man is entitled to the entire residuary estate. Pursuant to Domestic Relations Law § 117 (2) (a), the Manning respondents are strangers to the testatrix for the purpose of the interpretation or construction of the bequests at issue. Because the testatrix did not specifically name the Manning respondents as alternative beneficiaries in the event of the death of Manning, they are not entitled, as his issue, to the bequests made to him (see id.; Matter of Best, 66 NY2d 151, 156 [1985], rearg denied 66 NY2d 1036 [1985], cert denied sub nom. McCollum v Reid, 475 US 1083 [1986]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Martoche, JJ.

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Appeal from a decree of the Surrogate’s Court, Steuben County (Marianne Furfure, S.), entered June 13, 2003. The [948]*948decree determined that the fifth and tenth articles of decedent’s will lapsed in their entirety and are not saved by the anti-lapse statute and construed the tenth article of the will as an unconditional bequest to respondent Evelyn Beckman.

It is hereby ordered that the decree so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: In this proceeding petitioners, coexecutors of the estate of Mildred B. Murphy (testatrix), seek judicial construction of articles fifth and tenth of her will, which •..respectively bequeath a parcel of real estate and half of the residuary estate to Clair Manning (Manning). Manning, a son born out of wedlock to the testatrix and subsequently adopted by nonrelatives, predeceased the testatrix. Connie Morral, Frances K. Rice, Jim W Manning and David C. Manning (Manning respondents) are the children of Manning.

The Surrogate properly determined that the bequests to Manning lapsed due to his death and are not saved by the anti-lapse statute (EPTL 3-3.3 [a] [1]) and that respondent Evelyn Beck-man is entitled to the entire residuary estate. Pursuant to Domestic Relations Law § 117 (2) (a), the Manning respondents are strangers to the testatrix for the purpose of the interpretation or construction of the bequests at issue. Because the testatrix did not specifically name the Manning respondents as alternative beneficiaries in the event of the death of Manning, they are not entitled, as his issue, to the bequests made to him (see id.; Matter of Best, 66 NY2d 151, 156 [1985], rearg denied 66 NY2d 1036 [1985], cert denied sub nom. McCollum v Reid, 475 US 1083 [1986]). Present—Pigott, Jr., P.J., Green, Hurlbutt, Kehoe and Martoche, JJ.

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11 A.D.3d 947, 784 N.Y.S.2d 760, 2004 N.Y. App. Div. LEXIS 11265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-murphy-nyappdiv-2004.

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