135 Misc. 588 | N.Y. Sur. Ct. | 1929
This is an application by Michael J. Walsh, as executor of the will of the above-named testatrix, to have the following clause construed: “ To my brother, Michael J. Walsh, I bequeath my lots at Long Beach # 59-61, on block 59.” At the time of the death of the testatrix she did not own lot No. 59 on said block but did own lots Nos. 60 and 61 on said block. Michael J. Walsh is the sole devisee of all the real estate disposed of by the testatrix in her will and asks this court to construe the will as devising to him lots Nos. 60 and 61 on block 59. Testatrix never owned lot “ # 59 ” which is described in said devise. From a careful examination (1) of the whole will; (2) the use of the dash between the figures “ // 59 ” and “ 61 ” which it may be argued was intended to include No. 60, the intervening number; (3) of the fact that no other real estate was devised except to testatrix’s brother Michael, and (4) the possible confusion by the draftsman or the stenographer of the block number, which by odd coincidence is No. 59, with the actual numbers of the lots (60 and 61) which testatrix owed, I have concluded that the description in the will is simply erroneous and not intended by testatrix and that she intended to devise to said Michael J. Walsh lots Nos. 60 and 61. (Gallagher v. Quinlan, 10 App. Div. 402; Patch v. White, 117 U. S. 210.) Submit decree accordingly.
