153 Misc. 896 | N.Y. Sur. Ct. | 1934
Sophia M. Pierce died in the county of Tioga on the 2d day of May, 1933; leaving a last will and testament, the fourth
There seems to be no precedent for the situation which has arisen in this case. That is not unusual, for it is seldom that two wills are worded exactly alike, and precedents can be of little value in determining the intention of the testator. In Eisner v. Koehler (1 Dem. 277), however, Surrogate Rollins discusses the subject of conditions fulfilled prior to the death of the testator and their effect upon a legacy in a very logical manner, and he arrives at the conclusion that the construction of a will which utterly ignores the spirit and purpose of the conditions in the will is manifestly absurd.
It seems plain to me that this testatrix did not desire to give anything to her brother, Edward Maynard, or to his heirs, but she anticipated that he would have no property when he died and intended at that time that his funeral expenses, to the extent of $100, should be paid; that after the death of her brother, Edward Maynard, she still intended that his heirs should receive no part of her property, but that if his funeral expenses were not paid at her death the amount remaining unpaid, not to exceed $100, would be cared for -under the fourth clause of her will.
A decree may be entered directing the executor to pay to the undertaker the balance due him, to wit, the sum of eighty-one dollars and fifty cents, and finding that the balance of the legacy under the fourth clause lapsed and becomes a part of the residuary estate.