In re Burk's Will
| Citation | 86 N.E.2d 759,299 N.Y. 308 |
| Parties | In re BURK'S WILL. |
| Decision Date | 03 June 1949 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
On motion for reargument and to amend remittitur.
Motion for reargument denied and motion to amend remittitur granted.
For former opinion see 298 N.Y. 450, 84 N.E.2d 631, which reversed273 App.Div. 1012, 79 N.Y.S.2d 437, which modified190 Misc. 931, 76 N.Y.S.2d 166. Jack Korshin and F. Lloyd Barry, New York City, for appellants.
Frank R. Abbott, Warwick, for Mary E. Wright, respondent.
As defined by the Statute of Descent and Distribution, ‘next of kin’ and ‘distributee’ mean the distributees including a surviving spouse, who are defined in section 83 of the Decedent Estate Law. Decedent Estate Law, Consol.Laws, c. 13, s 47-c, L.1938, ch. 181. Having affirmed the Surrogate's ruling that the remainder herein vested on death of the life tenant Annie Burk, we ruled in effect (see 298 N.Y. 450, 84 N.E.2d 631) that such remainder was distributable per stirpes to the ‘brothers and sisters living, and the descendants in whatever degree of those dead.’ Decedent Estate Law, s 83, subd. 6, L. 1929, ch. 229. The per stirpes share to which Michael Brady, predeceased brother of life tenant, would have been entitled had he survived, or, having died, to which his son Albert would have been entitled as a descendant had he lived, may not be paid to Ella, Michael's surviving spouse, as ‘next of kin’ and ‘distributee’ as defined in section 47-c, because she is not a defendant of Michael within the meaning of subdivision 6 of section 83 of the Decedent Estate Law.
The relationship and dates of the deaths of the various individuals not being in dispute, there is no need for reargument of the appeal herein. The remittitur however, should be amended so as to eliminate Ella Brady as a distributee.
Motion for reargument denied. Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended to read as follows:
‘Order of Appellate Division reversed and decree of Surrogate's Court modified so as to provide that Ella M. Brady is not entitled to a distributive share as a next of kin of Michael Brady, deceased, and the decree otherwise affirmed, with costs in this court and in the Appellate Division to the appellants payable out of the estate.’ See 298 N.Y. 450, 84 N.E.2d 631.
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