In re the Estate of Tumarkin

235 A.D.2d 307, 653 N.Y.S.2d 6, 1997 N.Y. App. Div. LEXIS 511

Opinion

Order, Surrogate’s Court, New York County (Renee Roth, S.), entered February 2, 1996, which, inter alia, construed a will clause leaving to petitioner all property he "held jointly” with the decedent to include not just the properties held by the two as joint tenants but "all property of which they were co-owners, irrespective of the form in which title to the properties was held”, unanimously aifirmed, without costs.

The clause in question would be superfluous if construed to include only jointly held property since such property would, in any event, pass to the surviving tenant by operation of law (see, 24 NY Jur 2d, Cotenancy and Partition, § 22). Accordingly, absent evidence of a different intent, we construe the clause, as did the Surrogate, to include all property co-owned by the decedent and petitioner. Concur—Murphy, P. J., Rosenberger, Ellerin and Wallach, JJ.