103 Misc. 156 | N.Y. Sur. Ct. | 1918
Upon the accounting of the executors it became necessary for the surrogate to construe the will of the testator. Accordingly a day was set for
The testator died on June 10, 1914, leaving a last will and testament under which letters testamentary issued to the accountants on September 16, 1914. After making several testamentary provisions for his wife, the testator bequeathed and devised his residuary estate to his executors “ in trust,” and directed “ my executors and trustees to sell at public auction and after paying all mortgages, taxes, interests and
Bernhard Gorsch had ten children, all of whom survived the testator except Adolph Gorsch, who died on October 8, 1894, leaving him surviving a widow, Erika Kaletta, and a daughter, Klara.
Adelbert Dahm had three children, Erik, Kurt and Alfred Dahm. Erik Dahm predeceased the testator, leaving a widow, Alma Dahm, and a daughter, Erika. Since the death of the testator Kurt Dahm, a son of Adelbert Dahm, died leaving him surviving his. father, his brother Alfred and Erika Dahm, a daughter of his brother Erik. Alfred Dahm is still alive.
All the above named parties now living have been cited in this proceeding, and in the distribution of the ' estate of testator to be directed on this accounting it is necessary first to construe the three clauses of the testator’s will set forth at length above. The will is
Construction of a subsequent clause in the will of testator is also requested in this proceeding. The clause in question reads as follows: “All the rest, residue and remainder of my estate, if any, I give, devise and bequeath to such of my next of kin, and in such sums and on such conditions as my wife may provide in her last will and testament. ’ ’ It was in connection with the words “ next of kin ” in the foregoing clause of the will that some of the testimony herein-before referred to was given by the testator’s attorney, all of which was disregarded by the surrogate. Helen Gorsch, the widow of the testator, still survives, so that there is no occasion at this time to construe that clause of the testator’s will last above given. The construction requested will serve no useful purpose now and is not of any consequence in the present distribution of the estate of the testator. Occasion for the construction may never arise. Courts of construction will not proceed to pass upon questions which are abstract or academic, or in anticipation of events or
Decreed accordingly.