In re Blake's Estate — 100 N.Y.S. 627

Majority

p. 627

(50 Misc. Rep. 672.)

In re BLAKE’S ESTATE.

(Surrogate’s Court, Kings County.

May, 1906.)

Headnote

Wills—Partial Intestacy.

Testator devised certain property in trust during the lifetime of his wife. Upon the death of the wife the property was to be sold by his executors, who were given power of sale for that purpose, and from the proceeds of the sale $500 was directed to be given to testator’s son, with a proviso that, in the event of his death, the same should be held in trust. There was no provision made, however, for the distribution of the balance of the proceeds of the sale. Meld, that as to such balance testator is to be presumed to have died intestate, and that the same should be distributed in accordance with the statute.

[Ed. Note.—For cases in point, see vol. 49, Cent. Dig. Wills, § 965; vol. 16, Cent. Dig. Descent and Distribution, § 123.]

p. 628

Proceedings upon the final accounting of the executors of John A. Blake, deceased.

John A. Holzapfel, for accounting executors.

George M. Schuzel, for Emma and Maud Blake.

Joseph J. Hood, special guardian.

Under the will in question the property on Lynch street was given in trust during the term of the lifetime of testator’s wife Esther. By the fifth paragraph of the will there was a provision, however, authorizing the sale of said house during the wife’s lifetime, and providing for the division of the proceeds upon such sale. It is unnecessary to construe the effect of this provision, as it appears that such house was not sold in pursuance thereto.

By the sixth paragraph of the will, upon the death of his wife the said house and lot was to be sold by his executors, who were given power of sale to accomplish this result. From the proceeds of said sale $500 was directed to be given to the testator’s son John, with the proviso that, in the event of his death, the same should be held ini trust. Said son John is living, and therefore entitled to such sum of money. There is no provision made, however, for the distribution of the balance of the proceeds of such sale, and consequently the testator as to such amount is to be presumed to have died intestate, and the same should be distributed in accordance with the statute. Let decree provide accordingly.

Decreed accordingly.