Ambrosio's Will, In re

• Decision Date: 18 March 1958
• Citation: 172 N.Y.S.2d 839,10 Misc.2d 638
• Parties: In re AMBROSIO'S WILL. Application of Rose Scelfo, for a determination as to the validity, construction and effect of the disposition of property contained in the Last Will and Testament of Francesco Ambrosio, Deceased. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 839

172 N.Y.S.2d 839

10 Misc.2d 638

In re AMBROSIO'S WILL.

Application of Rose Scelfo, for a determination as to the

validity, construction and effect of the

disposition of property contained in the

Last Will and Testament of

Francesco Ambrosio, Deceased.

Surrogate's Court, Kings County.

March 18, 1958.

Francis J. Mangravite, New York City, for petitioner.

Klores & Klores, New York City, for Lena Iovino, respondent.

MAXIMILIAN MOSS, Surrogate.

The executrix seeks construction of articles 'Third', 'Fourth' and 'Fifth' of the will; and a determination that by reason of the failure of respondents to conform with alleged conditions precedent therein, that they forfeited their respective devises. By the terms of the first article of the will, testator acknowledged and indebtedness of $2,100 to a named daughter which he directed to be paid as indicated in the following two articles. In the second article, testator made a specific devise of a parcel of real property to two named daughters 'share and share alike' except that one of the named daughters was required to pay out of her share $1,000 'toward the discharge of the obligation' recited in the preceding article. Article 'Third' devises a second parcel of real property to two other named daughters, one of whom is the daughter named in the first article, except 'that each shall pay out of her share the sum of $550' toward the acknowledged obligation recited in the first article. In the fourth article a bequest of $2,000 is made to a daughter with a direction 'that said bequest be made a lien upon the real estate I may be possessed of' which consisted only of the two properties referred to in the preceding paragraphs. By article 'Fifth' 'after the payment of my debts and the bequest to Rose Scelfo, as aforesaid, * * *' testator devised and bequeathed all his estate to his said daughter.

The Court construes the above-mentioned articles as follows: That the respective payments to be made by the devisees in articles 'Second' and 'Third' do not precede the vesting of the estates devised; and that it was the intent of the testator to have the devisees make the required payments after taking possession. The conditions are held to be conditions subsequent. Fox v. Phelps, 17 Wend. 393, affirmed 20 Wend. 437; Loder v. Hatfield, 71 N.Y. 92; Smith v. Smith, 48 Hun 617; Hutchins v. Hutchins, 18 Misc. 633, 42 N.Y.S. 601; Irwin v. Teller, 115 App.Div. 17, 101 N.Y.S. 853. Liens in favor of the claimant were...