18 N.Y.2d 640, Ricks' Estate, Matter of

Citation:18 N.Y.2d 640, 272 N.Y.S.2d 783
Party Name:Ricks' Estate, Matter of
Case Date:July 07, 1966
Court:New York Court of Appeals
 
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Page 640

18 N.Y.2d 640

272 N.Y.S.2d 783

In the Matter of the ESTATE of Sybil H. RICKS, Deceased. John T. RICKS et al., as Executors of Sybil H. Ricks, Deceased, Respondents; Thomas S. RICKS et al., Appellants.

New York Court of Appeals

July 7, 1966.

Page 641

[Copyrighted Material Omitted]

Appeal from Supreme Court, Appellate Division, Second Department, 25 A.D.2d 535, 267 N.Y.S.2d 894.

Page 642

[272 N.Y.S.2d 784] Charles H. Tuttle, Walter R. Shepard and H. William Van Wagenen, Jr., New York City, for appellants.

Williamson Pell, Jr., David L. Frothingham and Henry A. Lowet, New York City, for respondents.

Application was made for construction of will of deceased testatrix.

There was evidence that three children had been born of the marriage of James B. Ricks, the son of the testatrix, and his wife Ethel Gertrude Ricks, and that, following their divorce, James B. Ricks married Doris Ricks and adopted her two children by a former marriage, and that James B. Ricks died in 1959, and that his three natural and two adopted children were all living at time of death of testatrix. There was also evidence that when will dated January 11, 1963 was presented to testatrix for execution it provided for disposition of one-fifth share of her residuary estate per capita to such of the children 'and adopted children of ETHEL GERTRUDE RICKS and' James B. Ricks, deceased, as shall be living at date of death of testatrix, and that, prior to execution, the words 'and adopted children of ETHEL GERTRUDE RICKS and' were stricken out, and that the word 'of' was inserted in handwriting in place of the stricken words, and that testatrix stated to her attorney that it was her intention that adopted children be eliminated from the will.

The Nassau County Surrogate's Court, John D. Bennett, S., 45 Misc.2d 919, 258 N.Y.S.2d 171, entered a decree determining that under the [272 N.Y.S.2d 784] will the three natural children of James B. Ricks, deceased, should take the entire one-fifth share of the residuary estate of the testatrix to the exclusion of the adopted children of James B. Ricks, deceased.

The Appellate Division, 25 A.D.2d 535, 267 N.Y.S.2d 894, entered an order February 14, 1966 which affirmed, by a divided court, the decree of the Surrogate's Court.

Appeal was taken to the Court of Appeals.

Order affirmed, with costs to all parties appearing separately and filing...

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