Hyperlawhypertext legal database In re Wyand 253 A.D. 921

← Cases

In re Wyand

253 A.D. 921 Court N.Y. App. Div. Decision date 1938-02-28 English

Contents

Majority

p. 921
In the Matter of the Application of Elizabeth Ann Brown Wyand for Determination of the Validity, Construction and Effect of the Disposition of Real Property Contained in the Last Will and Testament of Wallace Wyand, Deceased, and the Application of Elizabeth Ann Brown Wyand for Determination of the Validity and Effect of Her Election as Surviving Spouse of Said Wallace Wyand, Deceased, under Section 18 of the Decedent Estate Law, in Which Application Is Also Made by Said Elizabeth Ann Brown Wyand, in the Event that the Trust for Her Benefit Contained in Said Will Is Declared Valid for Any Purpose or in Any Respect, for Leave to Serve, File and Record an Amended Election under Said Section 18 of the Decedent Estate Law. Elizabeth Ann Brown Wyand, Respondent; Henry C. Wyand and Eugene F. McKinley, Executors and Trustees, etc., of Wallace Wyand, Deceased, Appellants.

Order of the Surrogate’s Court, Westchester county, in so far as it denies the motion of the exeeutors-appellants to dismiss the amended petition of respondent, reversed on the law, with ten dollars costs and disbursements to appellants, payable out of the estate, and motion granted. The amended petition does not state facts sufficient to warrant any of the three forms of relief demanded. The powers granted to the trustees by the terms of the will do not impair the trust so as to entitle the respondent to take her intestate share. (Matter of Clark, 275 N. Y. 1 .) -Assuming, as the amended petition alleges, that a mistake was made as to the value of the estate, it does not follow that there is a trust in form only. (Matter of Clark, supra.) Consequently, the respondent has no legal claim to the intestate share; and the two other forms of relief demanded, namely, (1) for a construction of the notice of election previously filed, and (2) for leave to file an amended election to take the intestate share, may not be granted. Lazansky, P. J., Hagarty, Davis, Johnston and Close, JJ., concur.

Cases cited