65 N.Y.S. 613 | N.Y. Sup. Ct. | 1900
This action is brought for an accounting for moneys-paid out by plaintiff, as executrix of Frederick J. Koezly; also for the construction of the will of said Frederick J. Koezly, and for a direction as to the manner in which a certain trust fund shall be created and disposed of. Plaintiff also asks in her complaint that the will may be so construed as to authorize and empower the plaintiff to sell real estate belonging to the testator, and that her right of dower in addition to the provisions for her benefit mentioned in the will may be determined. The action was commenced on the 10th of March, 1898. The testator died September 22, 1896, and left him surviving his widow and several children. He was married three times, and there was issue of each marriage at the date of his death. There survived him Edwin Koezly and Matilda J. Bennett, a son and daughter by his second marriage; also Doretta Koezly, daughter of Theodore Koezly, a son by the first marriage, Theodore being dead at the time of the decease of the testator; and Samuel, also a son by the first marriage. Samuel was alive and married at the date of the death of the testator, and left no issue, but did leave a wife, who remarried; and the defendants Geiger and Van Leuven claim to represent whatever interest she may have had in the estate. Said Anna Geiger has been appointed administratrix with the will annexed of the widow of Samuel Koezly, she and Van Leuven being children of the said widow by a first marriage. First. The fifth clause of the will is as follows: “ If my said wife docs not desire to care for the house as aforesaid, the same may be sold by her as my executrix, but for a sum not less than twenty-eight thousand (28,000) dollars, beyond incumbrances, and the proceeds representing the equity in the said house shall be kept as a trust fund, and the interest thereof shall be distributed semi-annually to my said wife and my said children at the rate hereinabove named during the life of my said wife.” It is claimed by the plaintiff that a mortgage of $13,000, to which the premises Ho. 20 East One Hundred and Eleventh street were subject at the time of the testator’s death, should not be included in the word “incumbrances ” used in the fifth paragraph of the will. This contention I regard as erroneous. In Chrystie v. Phyfe, 19 N. Y. 348, Strong, J., says: “ In the construction and application of wills, and especially of those containing complicated provisions, the following are reasonable and well-settled rules. The inten
Judgment accordingly.