In re the Probate of the Last Will & Testament of Mikantowicz

New York Surrogate's Court

In re the Probate of the Last Will & Testament of Mikantowicz

6 Mills Surr. 516, 60 Misc. 273, 113 N.Y.S. 278

DecidedJuly 15, 1908

StatusPublished

This text of 6 Mills Surr. 516 (In re the Probate of the Last Will & Testament of Mikantowicz) 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 Probate of the Last Will & Testament of Mikantowicz, 6 Mills Surr. 516, 60 Misc. 273, 113 N.Y.S. 278 (N.Y. Super. Ct. 1908).

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Opinion

Ketcham, S.

The will devises the residue to the testator’s wife, in trust, for the following purposes:

“ To collect and receive all the rents, issues, income and profits thereof and to apply the same for the support and maintenance of herself and my three children now residing with her until the youngest of my children shall have attained the age of twenty-one years. On the arrival at the age of twenty-one years of my youngest child, I direct that my property be sold and converted into cash and the same divided into seven equal [517]*517parts, one of which shall go to each of my six children and the remainder to my said wife, the issue of any deceased child to take the share which his parent would have received if living.”

It is stated in the briefs and assumed as true that the testator left him surviving six children; and it cannot be doubted that the term “ the youngest of my children ” was intended to indicate the youngest of the entire class which survived the father.

This trust suspends the power of alienation only during the minority of a person well designated, viz., the youngest of the testator’s children. A minority is deemed a part of a life and not an absolute term equal to the possible duration of such minority. Real Prop. Law, § 32. The suspension contained in the will was either until the minor who is specified should emerge from minority or should sooner die. Sawyer v. Cubby, 146 N. Y. 192, 197. This provision is, therefore, valid as a suspension for a period not longer than one life in being. The mere fact, as argued by the special guardian, that during the flux of this minority as many as five of the testator’s children could die, by no means indicates that the power of alienation was necessarily suspended during the lives of any one of the five or for any other period than the single life which was selected as the standard.

Decreed accordingly.

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Ketcham, S.

The will devises the residue to the testator’s wife, in trust, for the following purposes:

“ To collect and receive all the rents, issues, income and profits thereof and to apply the same for the support and maintenance of herself and my three children now residing with her until the youngest of my children shall have attained the age of twenty-one years. On the arrival at the age of twenty-one years of my youngest child, I direct that my property be sold and converted into cash and the same divided into seven equal [517]*517parts, one of which shall go to each of my six children and the remainder to my said wife, the issue of any deceased child to take the share which his parent would have received if living.”

It is stated in the briefs and assumed as true that the testator left him surviving six children; and it cannot be doubted that the term “ the youngest of my children ” was intended to indicate the youngest of the entire class which survived the father.

This trust suspends the power of alienation only during the minority of a person well designated, viz., the youngest of the testator’s children. A minority is deemed a part of a life and not an absolute term equal to the possible duration of such minority. Real Prop. Law, § 32. The suspension contained in the will was either until the minor who is specified should emerge from minority or should sooner die. Sawyer v. Cubby, 146 N. Y. 192, 197. This provision is, therefore, valid as a suspension for a period not longer than one life in being. The mere fact, as argued by the special guardian, that during the flux of this minority as many as five of the testator’s children could die, by no means indicates that the power of alienation was necessarily suspended during the lives of any one of the five or for any other period than the single life which was selected as the standard.

Decreed accordingly.

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6 Mills Surr. 516, 60 Misc. 273, 113 N.Y.S. 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-last-will-testament-of-mikantowicz-nysurct-1908.

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