In re the Estate of Hertzig

177 Misc. 600 | N.Y. Sur. Ct. | 1941

Foley, S.

Pursuant to my prior decision in this matter (177 Misc. 598), extrinsic evidence has been submitted in order to resolve the doubt as to the identity of the legatee. The question arose because the testatrix in her will made a gift of $500 and failed to correctly name the corporate charitable legatee. Conflicting claims to the legacy were made by two corporations. It was, therefore, necessary to resort to extrinsic evidence to explain the ambiguity in the will caused by the misnomer, (Matter of Smith, 254 N. Y. 283; Matter of Van Vliet, 224 id. 572; Baumann v. Steingester, 213 id. 328; Matter of Coughlin, 171 App. Div. 662; affd., 220 N. Y. 681; Matter of Tinker, 157 Misc. 200.)

The oral and documentary proof submitted clearly identifies the respondent, “ Jewish Consumptives’ Relief Society of Denver, Colorado, Inc.,” as the legatee intended by the testatrix. The draftsman of the will in his testimony’ explains how the' misnomer arose in the successive drafts of the will and found its place into the will as probated. The other oral and documentary evidence establishes that the testatrix had been active in the affairs of the successful respondent for over eighteen years and had been a member of the board of directors of the ladies’ auxiliary of that organization. She made contributions to the corporation from time to time' and was actively engaged in promoting the affairs of that charitable corporation. There is not even a scintilla of evidence that the testatrix had any connection whatsoever with the other charitable corporation claiming this legacy. It is difficult to conceive of. a case in which the object of the bounty of the testatrix could be more conclusively established. '

I accordingly hold that the legacy in question is payable to the Jewish Consumptives’ Relief Society of Denver, Colorado, Inc.

Submit decree on notice construing the will accordingly.