Cutter's Will, In re

• Decision Date: 25 November 1957
• Citation: 4 A.D.2d 966,168 N.Y.S.2d 366
• Parties: In re CUTTER'S WILL. Matter of the Judicial Settlement of the Final Account of Thurlow BURGMYER, as Trustee under the Last Will and Testament of Jennie R. Cutter, deceased. Edward B. Willace, as Committee of the Property of Mabel E. Spellissy, incompetent, Rose A. Taaffe, Helen E. O'Brien, as Administratrix of the Estate of Frances Flannagan Green, deceased, Edward B. Wallace, as Administrator of the estate of Jennie F. Taaffe, deceased, appellants; Thurlow Burgmyer, Annie Elizabeth Patten Avery, Albert M. Patten, and Hyman Wank, Public Administrator of the County of Kings, as Administrator of the Estate of Adeline L. Mailey, deceased, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 366

168 N.Y.S.2d 366

4 A.D.2d 966

In re CUTTER'S WILL Matter of the Judicial Settlement of the Final Account of Thurlow BURGMYER, as Trustee under the Last Will and Testament of Jennie R. Cutter, deceased Edward B. Willace, as Committee of the Property of Mabel E Spellissy, incompetent, Rose A. Taaffe, Helen E. O'Brien, as Administratrix of the Estate of Frances Flannagan Green deceased, Edward B. Wallace, as Administrator of the estate of Jennie F. Taaffe, deceased, appellants; Thurlow Burgmyer, Annie Elizabeth Patten Avery, Albert M. Patten, and Hyman Wank, Public Administrator of the County of Kings, as Administrator of the Estate of Adeline L. Mailey, deceased, Respondents.

Supreme Court, Appellate Division, Second Department.

Nov. 25, 1957.

Philip G. Reilly, New York City, for appellant.

Jas. G. Foley, Brooklyn, for respondent Burgmyer.

Newbold Morris, New York City, for respondents Avery & Patten.

David Keller, Brooklyn, for respondent Wank.

Before WENZEL, Acting P. J., and BELDOCK, UGHETTA, HALLINAN, and MURPHY, JJ.

MEMORANDUM BY THE COURT.

Appeal from a decree of the Surrogate's Court, Kings County, construing a will. By her will duly admitted to probate, the testatrix left her entire estate in trust to apply to the care, maintenance and support of her incompetent daughter for life. If the daughter survived her (which happened) and died without having been declared competent (which also happened), the trust estate on the daughter's death was to be divided into four equal shares, one share for each of the following: Julia Ida Cutter (sister-in-law of testatrix' deceased husband), Millard Cutter (Julia's son), and Howard Patten and Albert Patten (nephews of said husband). The will then provided that 'In the event that either of said Julia * * * Millard * * * Howard * * * or Albert * * * having survived me, should predecease my daughter leaving lawful issue him, her or them surviving, then such issue to take per stirpes the share that his, her or their parent would have taken if living. In the event that either of said Julia * * * Millard * * * Howard * * * or Albert * * * having survived me, should predecease my daughter leaving no lawful issue him, her or them surviving, then such share is to be divided equally among the survivors of said Julia * * * Millard * * * Howard * * * and Albert'. All four remaindermen survived the testatrix, but predeceased the life beneficiary. The remaindermen died in the following order: Albert, Howard, Julia, Millard. Albert left two children as his issue who are now living. Julia left her son, Millard, who predeceased the life beneficiary. Neither Howard nor Millard left issue. It is conceded that Albert's two children are entitled to his one-quarter share of the residuary of the trust estate. The question is whether these two children are entitled to the remaining three quarters, as the Surrogate held, or whether testatrix died intestate with respect...