Ricks' Estate, Matter of

Decision Date07 July 1966
Citation272 N.Y.S.2d 783,219 N.E.2d 296,18 N.Y.2d 640
Parties, 219 N.E.2d 296 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.
CourtNew York Court of Appeals Court of Appeals

Appeal from Supreme Court, Appellate Division, Second Department, 25 A.D.2d 535, 267 N.Y.S.2d 894. 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 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 separate briefs payable out of the estate.

DESMOND, C.J., and VAN VOORHIS, BURKE and SCILEPPI, JJ., concur.

KEATING, J., dissents and votes to reverse in the following opinion in which FULD and BERGAN, JJ., concur.

KEATING, Judge (dissenting).

When presented for her approval, article Fourteenth (par. (c)) of decedent's will read as follows: '(c) I give, devise and bequeath one of such equal shares as follows: Per capita, to such of the children And adopted children of Ethel Gertrude Ricks and my late son, James B. Ricks, deceased as shall be living at the date of my death.'

Ethel Gertrude Ricks, the first wife of James, never had any adopted children. James adopted the two natural children of his third wife, Doris.

Decedent directed that the italicized words be deleted. The word 'of' was added immediately after the words stricken. The will was then executed in due fashion.

Thus, as executed after the deletion, the testatrix distributed a portion of her estate 'to such of the children of my late son James B. Ricks, deceased as shall be living at the date of my death.'

There is no ambiguity at all in the will as executed. It is only when we reinsert the words which decedent deleted and attempt to discern the intent with which they were deleted that an ambiguity arises. The majority thereby writes something into the will which the testatrix took out and on that basis discovers an intent to disinherit the adopted children, not of Ethel, nor for that matter of Doris (they were her natural children), but of James, who in fact adopted them.

Even if we say that there is an ambiguity, it is just as likely that the...

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6 cases
  • Gardiner, Matter of
    • United States
    • New York Court of Appeals
    • December 19, 1986
    ...... A third trust was set up in ARTICLE FOURTH of Jonathan's will, directing that the remainder of his estate was to be held in trust for Winthrop Gardiner, Jr.--Jonathan's grandnephew--with the income payable to him when he reached 21 years of age. Upon ...at 34 A.D.2d 793, 311 N.Y.S.2d 702, Matter of Ricks, 18 N.Y.2d 640, 272 N.Y.S.2d 783, 219 N.E.2d 296, and Matter of Washburn, 17 N.Y.2d 895, 271 N.Y.S.2d 994, 218 N.E.2d 701, aff'g 24 A.D.2d 83, 264 ......
  • Henderson's Will, In re
    • United States
    • New York Surrogate Court
    • September 24, 1970
    .... Page 766. 314 N.Y.S.2d 766. 64 Misc.2d 280. In the Matter of the Judicial Settlement of the Account. rendered by First National City Bank as trustee under ... parents, the 'precautionary addendum' was repealed and replaced by another statute (Decedent Estate Law § 49, now EPTL 2--1.3, effective only with respect to wills of persons dying after March 1, ...Matter of Ricks, 18 N.Y.2d 640, 272 N.Y.S.2d 783, 219 N.E.2d 296 (extrinsic evidence establishes contrary intent)). ......
  • Silberman's Will, In re
    • United States
    • New York Court of Appeals
    • October 17, 1968
    .... Page 478. 295 N.Y.S.2d 478. 23 N.Y.2d 98, 242 N.E.2d 736. In re SILBERMAN'S WILL. In the Matter of the Accounting of Samuel J. SILBERMAN et. al., as Trustees under the Will of Dorothy. Silberman, ... Twenty-Sixth provides: 'I give, devise and bequeath onefourth (1/4) of my said residuary estate to my Executors and Trustees hereinafter named, IN TRUST NEVERTHELESS, to invest, reinvest and keep ... Our decision in Matter of Ricks, 18 N.Y.2d 640, 272 N.Y.S.2d 783, 219 N.E.2d 296 is illustrative of just such a case. In Ricks the ......
  • People v. Berger
    • United States
    • New York Court of Appeals
    • July 7, 1966
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