In re the Estate of Sparacio

391 N.E.2d 296, 47 N.Y.2d 771, 417 N.Y.S.2d 461, 1979 N.Y. LEXIS 2040

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

We agree that the testamentary disposition in this instance was precatory rather than mandatory. The testator, knowledgeable in matters of legal drafting, chose to employ the classic words of precatory import — "wish and desire”. Additionally, the substantive disposition is internally incongruous with a testamentary mandate; the ultimate distribution was not to daughter and friend "in equal shares” but "as in their mutual agreement they decide” — an apportionment impossible of judicial implementation.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed, etc.