In re the Will of Heller — 86 Misc. 148

Majority

p. 148

Matter of the Will of Rose Heller, Deceased.

(Surrogate’s Court, Bronx County,

June, 1914.)

Headnote

Wills — probate of—construction of — objection by special guardian when heard — Code Civ. Pro., § 2624.

It seems that where special guardians in a probate proeeeding apply, pursuant to section 2624 of the Code of Civil Procedure, for a determination as to the validity, construction and effect of an attempted disposition by will, the objection that a decision of the matter is unnecessary at that time because no distribution is then to be made will not be heard.

Proceeding upon the probate of a will.

Michael V. Bosenberg, for proponent.

William A. Keating and Gustave Frey, special guardians.

The testatrix left a last will and testament containing among other provisions the following:

“ My father, Marcus Frey, should get the amount of $400 four hundred dollars in case if my husband wouldn’t send him any money home, that he is suppose to send him $10 ten dollars monthly. And in case if he doesn’t send then my sister, Lina Letzter, should draw out of the amount of $400, each and every month the amount of $10 ten dollars until the last dollars. In case if my husband sends him- continuously then said amount should be divided between Fanny & Helen Heller. ’ ’

The two special guardians appointed for the infants interested have both submitted reports in which they state that they have no objection to the probate of the

p. 149

propounded document. They ask, however, that the surrogate, pursuant to section 2624 of the Code of Civil Procedure, determine the validity, construction and effect of the disposition attempted in the said last will and testament by the language above quoted. While the attorney for the petitioner urges that a decision of the matter is now unnecessary because no distribution is as yet to be made, nevertheless I think it is of importance that questions of this kind should be decided ás early as possible in the administration of estates so that executors may know the views of the court concerning doubtful provisions. I can see no utility in avoiding the decision thereof and postponing it to a time when the executrix through an honest misunderstanding may have made payments which might cause her embarrassment. I, therefore, proceed to a consideration of this clause.

It seems clear to me that the testatrix intended that her father should receive the sum of ten dollars each month, and, as she does not state for what period he is to get this amount, I think the presumption is fair that she intended he should receive it during his lifetime. I think that it is equally clear that in no event was he to receive more than the sum of $400 and accrued interest thereon out of the estate of the decedent. Evidently there was some understanding between the testatrix and her husband, the exact nature of which is not disclosed, which led her to believe that her husband would send the sum of ten dollars per month to her father. In order to make certain that her father would receive the said amount for at least a part of his life, she desired to make some provision out of her own estate, and as she could not tell how much money might be required, because that would depend upon the length of life of her father, and upon whether or not her husband made payments, the testa

p. 150

trix fixed upon an arbitrary sum of $400 which amount, with such interest as might accrue thereon, the executrix, Lina Letzter, was to pay to the father of the testatrix in monthly payments of ten dollars each whenever the testatrix’s husband failed to pay the same. I further believe that her intention was that upon the death of her father the said $400, and any interest thereon or so much thereof as remained in the hands of the executrix after making the payments referred to, should be divided between Fanny and Helen Heller.

The above being my understanding of the intent of the testatrix, I construe the clause quoted as a bequest in the sum of $400 to Lina Letzter, the executrix, in trust, nevertheless, to hold the same during the life of Marcus Frey, the father of the testatrix, and to pay to her said father out of the said amount and the interest that may accrue hereon the sum of ten dollars per month, whenever the husband of testatrix shall fail to make such a monthly payment of ten dollars to him, until the said sum of $400 and accrued interest thereon shall have been paid to said Marcus Frey; and upon the further trust, upon the death of said Marcus Frey, to pay to Fanny and Helen Heller, share and share alike, the said sum of $400 and accrued interest, or so much thereof as shall remain in her hands after making the payments, if any, to Marcus Frey as above stated.

Decreed accordingly.