In re the Probate of the Will of Clarke

New York Surrogate's Court

In re the Probate of the Will of Clarke

10 Misc. 2d 499, 169 N.Y.S.2d 734, 1957 N.Y. Misc. LEXIS 2254

DecidedNovember 1, 1957

StatusPublished

This text of 10 Misc. 2d 499 (In re the Probate of the Will of Clarke) 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.

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In re the Probate of the Will of Clarke, 10 Misc. 2d 499, 169 N.Y.S.2d 734, 1957 N.Y. Misc. LEXIS 2254 (N.Y. Super. Ct. 1957).

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Opinion

Anthony P. Savarese, S.

Proponents have offered a holographic will for probate. A problem arises as to the validity of the instrument because of testator’s use of the phrase " Until I get time to make a regular will and should I die before I do so, this is what I want done with my money,” which prefaces the disposition of his assets. The court is of the opinion that the quoted language is not conditional, but merely a statement of the inducement which led to the Avriting of the instrument. The only reasonable interpretation of the quoted phrase is that if testator died without having made some subsequent and more formal testamentary disposition of his assets, the propounded instrument should serve as his last will and testament.

The remaining question is whether another phrase “ I want my two good friends, Peter Lynch and Patrick Thomas Lynch to see that this is done ”, following the dispositive clauses, is sufficient to nominate the proponents as executors. It is clear that an individual may be entitled to serve as executor even though the will does not formally name him to serve in that capacity. (Matter of Buchan, 16 Misc. 204.) If it can be determined from the words in the will that decedent desired someone to carry out the provisions thereof then he intended that person to be executor. (Matter of Iommi, 195 Misc. 174.) It is apparent that the testator herein intended to have proponents act as executors, otherwise the words he used become meaningless. The proponents are deemed to be executors according to the tenor of the instrument.

Accordingly, the will is admitted to probate and letters testamentary will issue to proponents upon their qualifying according to law.

Submit decree on notice.

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Anthony P. Savarese, S.

Proponents have offered a holographic will for probate. A problem arises as to the validity of the instrument because of testator’s use of the phrase " Until I get time to make a regular will and should I die before I do so, this is what I want done with my money,” which prefaces the disposition of his assets. The court is of the opinion that the quoted language is not conditional, but merely a statement of the inducement which led to the Avriting of the instrument. The only reasonable interpretation of the quoted phrase is that if testator died without having made some subsequent and more formal testamentary disposition of his assets, the propounded instrument should serve as his last will and testament.

The remaining question is whether another phrase “ I want my two good friends, Peter Lynch and Patrick Thomas Lynch to see that this is done ”, following the dispositive clauses, is sufficient to nominate the proponents as executors. It is clear that an individual may be entitled to serve as executor even though the will does not formally name him to serve in that capacity. (Matter of Buchan, 16 Misc. 204.) If it can be determined from the words in the will that decedent desired someone to carry out the provisions thereof then he intended that person to be executor. (Matter of Iommi, 195 Misc. 174.) It is apparent that the testator herein intended to have proponents act as executors, otherwise the words he used become meaningless. The proponents are deemed to be executors according to the tenor of the instrument.

Accordingly, the will is admitted to probate and letters testamentary will issue to proponents upon their qualifying according to law.

Submit decree on notice.

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10 Misc. 2d 499, 169 N.Y.S.2d 734, 1957 N.Y. Misc. LEXIS 2254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-will-of-clarke-nysurct-1957.

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