228 A.D. 779 | N.Y. App. Div. | 1930
Dissenting Opinion
(dissenting). William McGowan, the above-named decedent, died on the 24th day of June, 1928, leaving a last will and testament executed by him on the 31st day of October, 1927, which was admitted to probate by the Surrogate’s Court of Kings county on the 16th day of July, 1928. Letters testamentary were thereupon granted to Lizzie McGowan, a sister of the decedent, and Mary Rogers, a daughter, the executrices and trustees named in the will. Decedent left him surviving the petitioner, William McGowan, who was twenty-one years old at the time of the trial in March of 1929; James McGowan, an infant son who is non compos mentis, whose mind will never develop beyond that of an eight-year-old child, and Mary Rogers, a daughter of the decedent, besides Lizzie McGowan, a sister and a legatee. Mary Rogers has five infant children. In this proceeding, brought pursuant to section 145 of the Surrogate’s Court Act, the son, William McGowan, seeks such a construction of the will as will result in a determination that the legacies are not a charge upon the real estate of the decedent and that as to the real estate decedent died intestate. Decedent’s estate at the time of his death amounted to $94,000, of which $19,000 was personal property and $75,000 was real estate. Testator, in his will, having first directed the payment of debts and funeral bills, gave to his sister the sum of $8,000, using the words “ I give and bequeath.” Following this, he gave to his executors and trustees the sum of $1,000 to be used for religious purposes, using the same form of expression. By the 4th paragraph he gave to his trustees the sum of $35,000 in trust, to pay the income and so much of the principal as may be necessary, in the discretion of the trustees, to the maintenance of his son James during his life, and upon his death to pay the principal, or so much thereof as may be left, “ to the legal representatives, heirs at law, or next of Mn of my said son, James McGowan, absolutely and forever.” In the creation of this trust the words “ give, devise and bequeath ” were used. By the 5th paragraph of the will the sum of $25,000 was given to his trustees in trust for the benefit of his daughter, Mary Rogers, during her life, and upon her death to pay the principal sum to her lawful issue, said lawful issue “ to have the same sum of money equally, share and share alike; the children of any of the lawful issue of my said daughter who shall have
Lead Opinion
Decree of the Surrogate’s Court of Kings county affirmed, with costs, payable out of the estate, to all parties appearing and filing briefs. No opinion. Lazansky, P. J., Rich, Young and Scudder, JJ., concur; Hagarty, J., dissents and reads for modification.