In re the Judicial Settlement of the Accounts of Palmer

85 A.D. 117

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1903
• Status: Published

Opinions

Smith, J.:

The real intent of the testator does not seem to me difficult of ascertainment. His father was his sole next of kin. By fair presumption he would not outlive the widow. There can be no reasonable probability that what remained of the property after the death of the widow was reserved for his benefit, or for the benefit of any other party. His intention clearly was that the property should belong to his widow. He endeavored, however, to restrict the use of the property during the life of the widow. Whether or not he was successful in that endeavor is immaterial to the question here for determination. If it be held that her life use was limited to her needs, it must, nevertheless, be held that sufficient title was given to her to be disposed of either by will or which would pass to her next of kin in case of intestacy. The presumption of law against a contemplated intestacy on his part as to part of his property is reinforced not only by the fact that his sole next of kin was his father, for whom he could not reasonably have intended a reservation, but also by the first provision of his will, which is an explicit declaration of gift to his wife of all his property, both real and personal. The succeeding clause in no way attempts to limit the amount of property given. The only attempt is to limit its use during the life of the widow. I am of opinion, therefore, that the property passed absolutely to Elizabeth Chase under the will of ■ John E. Chase, and that the determination of the surrogate was right.

All concurred, except Houghton, J., dissenting in opinion, in which Parker, P. J., concurred.