Bush's Will, In re

• Decision Date: 24 October 1957
• Citation: 3 N.Y.2d 908,167 N.Y.S.2d 927,145 N.E.2d 872
• Parties: , 145 N.E.2d 872 In re BUSH'S WILL. Application of Clayton F. BUSH, as Executor of the Last Will and Testament of Marion P. Bush, Deceased, etc., Central Trust Company, Rochester, N. Y., Appellant, Clayton, F. Bush, as Executor etc., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 927

167 N.Y.S.2d 927

3 N.Y.2d 908, 145 N.E.2d 872

In re BUSH'S WILL. Application of Clayton F. BUSH, as Executor of the Last Will and Testament of Marion P. Bush, Deceased, etc., Central Trust Company, Rochester, N. Y., Appellant, Clayton, F.

Bush, as Executor etc., Respondent.

Court of Appeals of New York.

Oct. 24, 1957.

Appeal from Supreme Court, Appellate Division, Fourth Department, 2 A.D.2d 526, 156 N.Y.S.2d 897.

Proceeding in the matter of the application of executor for a determination as to the validity, construction, and effect of disposition of property under the last will of deceased testatrix.

The Monroe Surrogate's Court, Michael L. Rogers, S., entered a decree construing the will, and an appeal was taken.

The Appellate Division, Kimball, J., entered an order modifying and affirming the decree of the Surrogate's Court and held that under will providing that executor had authority to set off and distribute in kind to any legatee, including any trust, or to any distributee, any of the securities or investments forming a part of the estate of the testatrix at the appraised values thereof, any securities or investments distributed in kind, as authorized by will, should be received and taken at appraised values as of date of death of testatrix, where no statutory inventory and appraisal was had pursuant to the Surrogate's Court Act, and property was appraised for estate tax purposes at 'date of death' values.

On appeal to the Court of Appeals it was contended that where a will authorizes the executor to distribute in kind, the rule is that the appraised values are determined as of the date of distribution unless the will provides otherwise, and that the court below erred in holding that it was manifest from will that testatrix intended to have her securities distributed at their appraised values as of the date of her death.

Van Schaick, Woods, Warner, Strathman & Sturman, Rochester (Howard M. Woods, Rochester, of counsel), for appellant Central Trust Co. as trustee under will of Marion Bush.

Peter G. and Jay A. Smith, Webster (Peter G. Smith, Webster, of counsel), for respondent Clayton Bush, as executor of will of Marion Bush.

Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

All concur.