In re the Will of Barney

Headnote

Wil l — definite gift to son — when not cut down by subsequent clause expressing desire of testatrix as to manner of disposal of remainder of property upon son’s death without children.

Matter of Barney (Will), 207 App. Div. 25 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 13, 1923, which reversed a decree of the Chautauqua County Surrogate’s Court construing the will of Mariette L. Barney, deceased. Testatrix, by the second clause of her will gave all of her property both real and personal to her son. A subsequent clause reads: “ Third. I desire that my son shall observe the following requests: To remember Frank P. Wolfe for his kindness to us with a small sum and when wanting advice to go to him; that he .remember Joseph Breads, Mrs. Henry Witt of Dunkirk, N. Y., and Mr. and Mrs. Bert Bentley; that if my son dies without children then I desire that the property which came to me on the Griswold side, if any is left, be given to Myrtie Eldridge and her children (she being a niece of Mrs. Ursula Griswold Durand Turner) and that the property which came to me on the Durand side to be given to Sarah Durand. I desire my son to do as he wishes with the property in his lifetime and to follow these requests in the disposition of the remainder of those properties.” The surrogate held that by this clause the absolute gift to the son contained in the second paragraph was cut down to a life estate, with

a definite gift of a portion of the remainder to appellant should he die without children. The Appellate Division held this to be erroneous.