In re the Estate of Smith — 60 N.Y.2d 864

Majority

p. 864

In the Matter of the Estate of Earl W. Smith, Deceased. Elizabeth Klindt et al., Appellants; Margaret M. Heit, Respondent.

Submitted October 21, 1983;

decided November 22, 1983

p. 865

APPEARANCES OF COUNSEL

James E. Konstanty for appellants.

Edward Gozigian 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

p. 866

briefs, payable out of the estate, for the reasons stated in the memorandum in that court ( 90 AD2d 905 ).

If the word “including” in the fourth paragraph of the will is read to mean “as well as” the pattern of decedent’s dispositive plan becomes evident and internally consistent. Subject to the gift of his residence to his wife to enjoy during her lifetime if she did not predecease him, he gave the residence to his friend Margaret Mary Heit. If his wife did predecease him, he gave what would have been her life interest in the residence, as well as the “fee” thereof, to Margaret Mary Heit.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum, with costs payable out of the estate to all parties appearing separately and filing separate briefs.