In re Zuber

Appellate Division of the Supreme Court of New York

In re Zuber

258 A.D. 843, 15 N.Y.S.2d 667, 1939 N.Y. App. Div. LEXIS 7194

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 10, 1939

StatusPublished

This text of 258 A.D. 843 (In re Zuber) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Zuber, 258 A.D. 843, 15 N.Y.S.2d 667, 1939 N.Y. App. Div. LEXIS 7194 (N.Y. Ct. App. 1939).

Pincite

Opinion

Decree affirmed, with costs payable out of the estate. Memorandum: While it is true that a wiE speaks as of the time when it takes effect (Beetson v. Stoops, 186 N. Y. 456, 460), the testator himseE speaks as of the time of the making of his wiE (Matter of Hoffman, 201 N. Y. 247; Morris v. Sickly, 133 id. 456; McLean v. Freeman, 70 id. 81); and, for the purpose of arriving at the intention of the testator, it is necessary to look to the circumstances as they existed when he made his wiE. At the time this wiE was made a wife was not an heir, and when testatrix bequeathed her estate to her children and “ in case of the death of any of the above named children * * * to his or her heirs,” she did not intend to include a wife of a son who predeceased her. Notwithstanding the reasoning of the opinion in the case of Gillian v. Guaranty Trust Co. (186 N. Y. 127), and notwithstanding our decision in Matter of Ward (251 App. Div. 781), we are constrained to affirm the decree here appealed from, on the authority of Matter of Waring (275 N. Y. 6). All concur. (The decree construes a wiE.) Present — Crosby, Lewis, Cunningham, Taylor and DowEng, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Decree affirmed, with costs payable out of the estate. Memorandum: While it is true that a wiE speaks as of the time when it takes effect (Beetson v. Stoops, 186 N. Y. 456, 460), the testator himseE speaks as of the time of the making of his wiE (Matter of Hoffman, 201 N. Y. 247; Morris v. Sickly, 133 id. 456; McLean v. Freeman, 70 id. 81); and, for the purpose of arriving at the intention of the testator, it is necessary to look to the circumstances as they existed when he made his wiE. At the time this wiE was made a wife was not an heir, and when testatrix bequeathed her estate to her children and “ in case of the death of any of the above named children * * * to his or her heirs,” she did not intend to include a wife of a son who predeceased her. Notwithstanding the reasoning of the opinion in the case of Gillian v. Guaranty Trust Co. (186 N. Y. 127), and notwithstanding our decision in Matter of Ward (251 App. Div. 781), we are constrained to affirm the decree here appealed from, on the authority of Matter of Waring (275 N. Y. 6). All concur. (The decree construes a wiE.) Present — Crosby, Lewis, Cunningham, Taylor and DowEng, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

258 A.D. 843, 15 N.Y.S.2d 667, 1939 N.Y. App. Div. LEXIS 7194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-zuber-nyappdiv-1939.

Opinion

Related

Cite This Page — Counsel Stack