In re the Probate of the Will of Farquharson

New York Surrogate's Court

In re the Probate of the Will of Farquharson

16 Misc. 2d 674, 189 N.Y.S.2d 55, 1959 N.Y. Misc. LEXIS 4161

CourtNew York Surrogate's Court

DecidedMarch 10, 1959

StatusPublished

Cited by1 cases

This text of 16 Misc. 2d 674 (In re the Probate of the Will of Farquharson) 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 Will of Farquharson, 16 Misc. 2d 674, 189 N.Y.S.2d 55, 1959 N.Y. Misc. LEXIS 4161 (N.Y. Super. Ct. 1959).

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Opinion

John C. Boylan, S.

In this probate proceeding the proponent also requests a construction of the will.

The court undoubtedly has power to construe a will at any stage (Surrogate’s Ct. Act, § 145), however, when a construction is sought during the probate proceeding the court will, in its discretion, grant the application only when there is a showing of an essential need for construction. It has been uniformly held that the exercise of the court’s discretion in favor of construing a will at this time is only when it is required for the orderly administration of an estate, a determination of necessary parties or other cause of like nature.

In the case at bar construction is sought for a determination as to whether there is an intestacy of the residue or whether the will has provided for the disposition of the remaining assets. This determination is normally left for the accounting proceeding.

The courts have rightly proceeded on the proposition that to decide in advance an issue that may arise in futuro subject themselves to possible legislative change or circumstances that may not be the same then as now (Matter of Mount, 185 N. Y. 162).

The court will not indulge in rendering an impotent decision tainted with fugacity. The proponent is to proceed with the probate of the will and the application for construction is denied without prejudice to a similar application being made at the time of accounting.

Proceed accordingly.

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John C. Boylan, S.

In this probate proceeding the proponent also requests a construction of the will.

The court undoubtedly has power to construe a will at any stage (Surrogate’s Ct. Act, § 145), however, when a construction is sought during the probate proceeding the court will, in its discretion, grant the application only when there is a showing of an essential need for construction. It has been uniformly held that the exercise of the court’s discretion in favor of construing a will at this time is only when it is required for the orderly administration of an estate, a determination of necessary parties or other cause of like nature.

In the case at bar construction is sought for a determination as to whether there is an intestacy of the residue or whether the will has provided for the disposition of the remaining assets. This determination is normally left for the accounting proceeding.

The courts have rightly proceeded on the proposition that to decide in advance an issue that may arise in futuro subject themselves to possible legislative change or circumstances that may not be the same then as now (Matter of Mount, 185 N. Y. 162).

The court will not indulge in rendering an impotent decision tainted with fugacity. The proponent is to proceed with the probate of the will and the application for construction is denied without prejudice to a similar application being made at the time of accounting.

Proceed accordingly.

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16 Misc. 2d 674, 189 N.Y.S.2d 55, 1959 N.Y. Misc. LEXIS 4161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-the-will-of-farquharson-nysurct-1959.

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