109 N.Y.S. 212 | N.Y. Sup. Ct. | 1907
Action for the judicial construction of the last will and testament of Adam Bollentin, the plaintiff’s testator. Hortatory or precatory language in a will is not necessarily the alma vita of a right and, therefore, to be given imperative effect. Foose v. Whitmore, 82 N. Y. 405. The ultimity of construction is the achievement of intention (Central Trust Co. v. Egleston, 185 N. Y. 23, 28), and certainty repels uncertainty. Campbell v. Beaumont, 91 N. Y. 464; Banzer v. Banzer, 156 id. 429; 30 Am. & Eng. Encyc. of Law (2d ed.) 687. The will under review is in the German language and correctly translated as follows : “ I herewith declare my wife Thecla Bollentin as the sole, heir of my entire property, cpnsisting of real estate, personal property, share in the business, and whatsoever there may be of which the property is composed. She is to have free disposal of the same, and shall only he held to leave tie
Judgment accordingly.