22 N.Y. St. Rep. 352 | N.Y. Sur. Ct. | 1889
The objections raised by the contestant, Luther M. Fuller, to the probate of the will, on the ground that the testator failed to declare the instrument propounded for probate to be her last will and testament to the subscribing witnesses are clearly without foundation, if not frivolous. I accordingly admit the will to probate. As to that part of the answer of Luther M. Fuller which put in issue the validity, construction, and effect of the disposition of testator’s estate, and the allegations that the provisions of the will are invalid and void, I am of the opinion, upon the authority of Jones v. Hamersley, 4 Dem. Sur. 427, that it is the duty of the surrogate, under section 2624 of the Code of Civil Procedure, to construe the provisions of the will so put in issue. It is clear that, if the provisions of the will are for any reason invalid and void, Luther M. Fuller, as next of kin, would have such an •interest- in the personal estate of the testator as would entitle him to share in the-same under the statute of distributions.
I think that all of the objections raised by the contestant are without foundation, and, like the objections to the admission of the instrument to probate, frivolous. The designation of all the institutions in which the funds of the testator- were deposited is clear and explicit, and the intent of the testator with reference to each of the funds is clearly expressed, and cannot be misunderstood. I therefore decide that the provisions of the will referred to in