In re the Judicial Settlement of the Account of Proceedings of Van Vliet

181 A.D. 879 | N.Y. App. Div. | 1918

Per Curiam:

This will, made in haste, May 22, 1914, in its 10th clause bequeathed $10,000 to “ Jennie Spencley and $5,000.00 to Albert Spencley, the children of my brother, Martin Spencley.” Respondent Jennie Spencley is the daughter of another brother,. William Spencley. She had lived with deceased many years. Appellant is the daughter of Martin Spencley, but her name is Jane Ida Elizabeth Victoria Lloyd. She resides at Peter- • borough, Canada, and had married William John Lloyd on October • 31, 1888. Notwithstanding the learned argument for the appellant, we think the surrogate rightly held that these facts showed a latent ambiguity which let in parol evidence. (Matter of Coughlin, 171 App. Div. 662; affd., 220 N. Y. 681; Baumann v. Steingester, 213 id. 328.) This parol evidence, left with little contradiction, amply identified the respondent as the intended legatee.

While costs are ordinarily in the discretion of the Surrogate’s Court, it would seem a hardship for the full trial costs to be imposed on this niece, who was brought in by citation naming her as Jane I. E. V. Lloyd. She appeared and contested an issue which had arisen through the haste in making and executing the will. Hence the decree of the surrogate is varied by striking out these costs as against appellant, and, as thus modified, the decree of the Surrogate’s Court of Queens county is affirmed, without costs of appeal to either party.

Jenks, P. J., Thomas, Putnam, Blackmar and Kelly, JJ., concurred.

Decree of the Surrogate’s Court of Queens county modified by striking out the costs as against the appellant, and as thus modified affirmed, without costs of appeal to either party.