11 A.D.2d 804 | N.Y. App. Div. | 1960
In a second proceeding by the coexeeutor to construe paragraph “Third” of testator’s will, the six legatees named in said paragraph, who are his brother and five sisters, appeal from so much of a decree of the Surrogate’s Court, Westchester County, entered Jauary 13, 1960, as adjudges: (1) that shares of stock owned by the testator in three family corporations at the time of the execution of the will do not pass to such legatees under said paragraph but become part of the residuary estate; and (2) that, at the time of the execution of the will, the testator, by its third paragraph intended to dispose of “ only that stock which was not to be covered by the inter vivos agreement, which hfe intended to execute and which in fact he did execute within six days after his Will ”. Paragraph “ Third ” of the will, which was executed on August 4, 1956, provides that .the legatees therein named shall receive any stock which the testator shall own in the three corporations at the time of his death “ which I have a right to convey ”. Six days later, on August 10, 1956, the testator and the three corporations entered into an agreement in which it was provided that, upon his death, each of the corporations would purchase his shares of stock upon stated terms and conditions and that payment therefor was to' be made to his estate or to such persons as his executors might direct. The aggregate purchase price was $100,000. The agreement also provided that the testator would not sell or dispose of the stock without first giving notice of his intention to the corporations. On a prior appeal to this court by the same legatees from a decree similarly construing said paragraph “ Third ” of the will, the decree was reversed and the proceeding remitted to the Surrogate’s Court to take proof of the testator’s intention as to the scope . of- such. paragraph and to receive the scrivener’s testimony in connection therewith (Matter of Bracalello, 7 A D 2d 1022). -The learned Surrogate, after--taking such proof and testimony, has again construed • said paragraph' “ Third ” in the same manner as he did previously. Decree insofar- as appealed from affirmed, with costs to all parties filing separate briefs, payable out of the estate. Nolan, P. J., Ughetta, Christ and Brennan, JJ., concur.
