In re the Estate of Sparacio — 47 N.Y.2d 771

Majority

p. 771

In the Matter of the Estate of Charles M. Sparacio, Also Known as Salvatore M. Sparacio, Deceased. Mary Sparacio, Respondent; Eileen Maroshick, Appellant.

Argued March 23, 1979;

decided May 3, 1979

p. 772

APPEARANCES OF COUNSEL

Bernard Meyerson and Herman M. Goldberg for appellant.

Roy Rudd and John G. Nicholas for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

We agree that the testamentary disposition in this instance was precatory rather than mandatory. The testator, knowledgeable in matters of legal drafting, chose to employ the classic words of precatory import — "wish and desire”. Additionally, the substantive disposition is internally incongruous with a testamentary mandate; the ultimate distribution was not to daughter and friend "in equal shares” but "as in their mutual agreement they decide” — an apportionment impossible of judicial implementation.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed, etc.