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In re Schnitzler

114 N.Y.S. 934 Court N.Y. Sur. Ct. English

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p. 934
(61 Misc. Rep. 218.)
In re SCHNITZLER.
(Surrogate’s Court, Queens County.
November, 1908.)

Headnote

1. Wills (§ 507[2] )—“Heirs”—Who Abe.
The use of the word “heirs” in a will in connection with personal property means the next of kin of a decedent, or those who take the personal estate of an intestate.
[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1100, 1101; Dec. Dig. § 507.*
. For other definitions, see Words and Phrases, vol. 4, pp. 3241-3264; vol. 8, pp. 7677, 7678.]
p. 935
2. Wills (§ 507*)—Legatees—“Legal Heirs.”
Testator bequeathed certain personalty to “the legal heirs” of his housekeeper. Held, that her husband was excluded from sharing in the legacy.
[Ed. Note.—For other cases, see Wills, Cent. Dig. § 1102; Dec. Dig. § 507.*
For other definitions, see Words and Phrases, vol. 5, pp. 4063, 4064.]
3. Executors and Administrators (§ 47*)—Assets—Devise oe Personalty.
Where testator bequeathed certain personalty to the legal heirs of his housekeeper, her executor is entitled to receive the income of the legacy from the date of the last payment to her of the income to the time of her death.
[Ed. Note.—For other cases, see Executors and Administrators, Dec. Dig. § 47.[2] ]
In the matter of the judicial settlement of Paul Schnitzler, executor and trustee of Frederick Wolfram. Decree rendered.
Edward R. Vollmer, for executor.
Ira Q. Darrin, for Emile E. Rathgeber, executor of the last will and testament of Risette Rockstaedt, deceased, and others.

The sixth paragraph of the last will and testament of Frederick Wolfram, deceased, contains the following provision:

“To the legal heirs of Mrs. Lisette Lockstaedt, the sum of $2,000.00, forever, in consideration of her services to me as housekeeper.”

Said Risette Rockstaedt received the income of the estate of said deceased up to and including the 1st day of December, 1907. Said Risette Rockstaedt died on or about the 4th day of April, 1908, leaving a last will and testament, which was duly admitted to probate by the Surrogate’s Court of the county of Queens on the 14th day of May, 1908, and letters testamentary thereunder were duly issued to Emile E. Rathgeber, sole executor named in said will. Said Risette Rockstaedt left her surviving her husband, Herman Rockstaedt, who is now confined in the Manhattan State Hospital, Ward’s Island, in the city, county, and state of New York, as an insane person; and Paul Schnitzler, the trustee of Frederick Wolfram, the decedent herein, has been duly appointed as committee for said Herman Rockstaedt. Said Risette Rockstaedt also left her surviving her sister, Rouisa Stiep, and Ferdinand August Weigle, August Carl Weigle, sons of Carolina Weigle, deceased, who was a sister of said Risette Rockstaedt, an,d Annie Weigle, a daughter of Frederick Weigle, deceased, who was a son of Carolina Weigle, deceased. Other than the foregoing said.Risette Rockstaedt left surviving her no other heirs at law or next of kin.

The rule of construction that has been adopted in this state!is that the word “heirs,” when used in connection with personal property, means the next of kin of a decedent, or “those related by blood, who take personal estate of one who dies intestate.” Tillman, v. Davis, 95 N. Y. 17 , 47 Am. Dec. 1 . Section 2514, Code Civ. Proc. subd. 12, defines “next of kin” as including “all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife:”

p. 936
Therefore the words “legal heirs of Mrs. Lisette Lockstaedt,” used in the sixth paragraph of the will of the decedent herein, must be construed as meaning the “next of kin” of said Lisette Lockstaedt, or those related to her by blood who would share in the distribution of her personal estate had she died intestate. This, of course, excludes the husband of said Lisette Lockstaedt from any share in the legacy left to her under the will' of Frederick Wolfram, deceased; and said legacy should be distributed among those related by blood to said Lisette Lockstaedt, or her legal next of kin, according to the degree of such relationship.

The executor under the last will and testament of said Lisette Lockstaedt, deceased, is entitled to receive the income on said legacy of $2,000 from December 1, 1907, the date of the last payment to her of such income, to the time of her death, April 4, 1908.

Enter decree accordingly.

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