163 Misc. 323 | N.Y. Sur. Ct. | 1937
The decedent by her will made numerous bequests to nieces and nephews. She left no descendants, and by her will, drawn in 1927, she left nothing to her husband, from whom she had
The claim is made by the contestants that the portion of the estate exceeding one-half of the amount on hand that is given for masses shall be turned over to pay upon their legacies, which otherwise will somewhat abate. It seems, however, that the contestants have based this claim upon a deduction of administration and funeral expenses as well as the debts existing at the date of death, but the true basis of computation of the value of the gift to charity is not the value of the estate at accounting; it is the value at the death of the testator, as if then turned into cash and the accounts balanced on that day. (Matter of Kaufman, 158 Misc. 102; also notes of Commission [1929] to Dec. Est. Law, § 17, 13 McKinney’s Consolidated Laws.)
On that basis I find that the bequests for masses do not exceed the statutory percentage, and, therefore, it is not necessary for me to challenge the right of the claimants to object. However, under section 17 of the Decedent Estate Law, as now amended, it seems clear that none of the claimants are proper parties to oppose the religious bequests, assuming they would exceed one-half of the net estate of decedent at death.
I hold, therefore, that the trust for masses in paragraphs 2 and 11 are valid. However, by paragraph 6, a certain St. Mary’s Society of Holy Trinity Church was bequeathed the sum of $500 for masses for the repose of the decedent’s soul. Since the evidence shows that there is not and never has been such a society, I hold that this legacy lapses for want of a beneficiary.
Another question Which has been raised on the judicial settlement is with reference to a bequest made in paragraph 9 of the will. By this paragraph testator bequeaths “ unto my beloved niece, Mrniela Matockie, the sum of two hundred dollars, her heirs and assigns forever.” It is conceded that there is no name “ Mrniela ” in either Polish or English.
“ A misnomer or misdescription of a legatee or devisee, whether a natural person or a corporation, will not invalidate the provision or defeat the intention of the testator, if, either from the will itself or evidence dehors the will, the object of the testator’s bounty can be ascertained.” (Lefevre v. Lefevre, 59 N. Y. 434; Matter of Dering, 140 Misc. 357.)
Testator has left two nieces, one Aniela Malecki and the other Maryanna Malecki. These nieces are daughters of different brothers of testator. Aniela Malecki is a sister of the executor Edward Malecki. He was bequeathed $500 by the 8th paragraph of the will, just preceding the provision in question. The other niece, Maryanna Malecki, is considerably younger than Aniela, and at the time the testator made her will was only about thirteen years old.
Testimony was produced in behalf of each of these young women, the testimony of Helen Wolak for Maryanna Malecki being to the effect that about seven years after the will was executed the aunt had promised that Maryanna would be taken care of in her will for certain household services which she had rendered to her aunt. The executor Edward Malecki was present at the time the will was drawn and, although counsel for Maryanna Malecki disturbed this witness considerably on cross-examination, still the fact that he was present when the drafting was done must be given considerable weight. He was positive in his assertion that his aunt mentioned Aniela Malecki and not Maryanna Malecki as the recipient of the $200 legacy. Unfortunately, the stenographer who drew the will was not well acquainted with Polish names, and practically every name throughout the will is misspelled. The name “ Aniela,” however, is quite usual to an American, and yet the stenographer has the unusual combination of letters that go to make up this Polish name, with the exception of the first letter of the name, spelled correctly. Counsel for Maryanna
The fund set aside for funeral expenses and mass amounted to $1,000, but the executor has spent only $534.98, as being necessary for the funeral of the decedent, the balance of $465.02, I hold, becomes available for payment upon the general legacies.
In view of the sizeable amounts left in trust for the procuring of masses, I direct that the trustees be required to furnish a bond before receiving the funds as trustees.
Submit decree accordingly.