In re Burk's Will

Citation298 N.Y. 450,84 N.E.2d 631
PartiesIn re BURK'S WILL.
Decision Date03 March 1949
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding in the matter of the accounting of Anna M. Barry, as substituted trustee under the will of Albert Burk, deceased. Anna M. Barry, individually, and others, appeal from an order of the Appellate Division of the Supreme Court entered May 10, 1948, 273 App.Div. 1012, 79 N.Y.S.2d 437, which modified on the law and affirmed as modified a decree of the Orange County's Surrogate's Court, 190 Misc. 931, 76 N.Y.S.2d 166, settling the account of a substituted trustee under the will of Albert Burke, deceased, and construing the second paragraph of the will so as to hold that respondent Mary E. Wright, sole survivor of the brothers and sister of testator's widow, was entitled as ‘nearest of kin’ or ‘next of kin’ to one-eighth of the estate. The modification consisted of striking from the decree certain provisions made for the next of kin of Albert Burk and substituting therefor a provision that respondent Mary E. Wright as ‘nearest of kin’ was entitled to one-half of the estate.

Order of Appellate Division reversed and decree of Surrogate's Court affirmed. Jack Korshin, F. Lloyd Barry, and Sidney K. Nadelson, all of New York City, for appellants.

Frank R. Abbott, of Warwick, for respondent Mary E. Wright.

W. B. Vander Voort, of Middletown, for respondents Christine Patterson and others.

Albert W. Davis, of Chester, respondent, special guardian in person.

DYE, Judge.

Albert Burk died April 21, 1931, having made a will leaving his estate in trust for the life use and benefit of his wife. She died April 26, 1947. The substituted testamentary trustee has filed her petition to account and for a construction of the testator's will to determine to whom and in what proportions the residue of the estate remaining in her hands is now distributable, the testator having provided, viz.: ‘Second: Upon the death of my wife, I order and direct my said executor to pay and distribute the one-half of all my said estate unto my nearest of kin in equal shares and to pay and distribute the other half of all my said estate unto the nearest of kin of my wife in equal shares.’ (Emphasis supplied.) The parties to this appeal are the persons interested in the one half of the residue of the estate payable to the relatives of the life tenant. The distribution of the one-half share payable to the testator's relatives is not controverted, they having previously agreed among themselves upon a satisfactory division. The Surrogate, without the aid of extrinsic evidence but relying solely on the testamentary language, has found and decreed that, in the absence of words of gift ‘in praesenti’ and the direction of the executor to pay and distribute, the remainder vested upon the death of the life tenant. Matter of Bostwick's Will, 236 N.Y. 242, 140 N.E. 576. He also construed the phrase ‘nearest of kin’ as equivalent to and synonymous with ‘next of kin’ in the legal sense and directed distribution ‘per stirpes' in accordance with the Decedent Estate Law, Consol.Laws, c. 13, applicable to intestacies.

The Appellate Division construed the words ‘nearest of kin’ to mean ‘nearest blood relation’ and modified the Surrogate's decree directing payment to the life tenant's sole surviving sister, Mary E. Wright, to the exclusion of all other parties who were next of kin in the legal sense, including Ella Brady, the spouse of her deceased brother Michael Brady, Decedent Estate Law, ss 47-c, 83. It declined, however, to pass on when the remainder vested (79 N.Y.S.2d 438) ‘in the absence of an appeal from the decree.’ Wilson v. Mechanical Orguinette Co., 170 N.Y. 542, 63 N.E. 550;Matter of Davis' Estate, 149 N.Y. 539, 44 N.E. 185;Kelsey v. Western, 2 N.Y. 500. The notice of appeal to the Appellate Division filed by Mary E. Wright contained a statement limiting the appeal from ‘so much and such part of the decree * * * as adjudges that the term ‘nearest of kin’ in the will of Albert Burk means ‘next of kin’ and * * * to whom and in what proportions the estate * * * is now payable.' The cases relied on are proper authority where separable or severable issues are disposed of in a single judgment or order from which an appeal is taken from a party only. Under such circumstance the review is confined to the part appealed from. In this appeal the issue involves the testator's intent as expressed by the language used in his will. Every element necessary to the ascertainment of such intention in order to accomplish distribution of the residue to the persons and in such proportion as intended is open to review, including the time when the remainder vested. We may not be concluded in a proceeding of this sort because the appellant in her notice of appeal to the Appellate Division sought to restrict the review by stating a limitation, nor is the situation changed by the circumstance that the distributees of James and Michael Brady, deceased brothers of the life tenant and parties to the proceeding, did not appeal from the Surrogate's decree to the Appellate Division, or that the distributees of Philip Brady, a deceased brother, and the special guardian of the missing brother, John Brady, who had been declared judicially dead, did not appeal from the modification in the Appellate Division to this court, so as to prevent their interest from being considered here. All parties to the proceeding are deemed parties to this appeal. Surrogate's Court Act, s 289; Civil Practice Act, s 193, subd. 1, s 584; Matter of Winburn, 270 N.Y. 196, 200 N.E. 784.

The testator directed his executor after the death of the life tenant to pay and distribute one half of his estate ‘unto the nearest of kin of my wife’ thereby indicating a gift to a class which could not very well be ascertained until the death of the wife. It was not until then that the remainder vested Matter of Bostwick's Will, 236 N.Y. 242, 140 N.E. 576, supra; Matter of Koch's Estate, 282 N.Y. 462, 27 N.E.2d 10;Matter of Pulis, 220 N.Y. 196, 115 N.E.516; Real Property Law, s 40, Consol. Laws, c. 50. Members of the class at the time of distribution take. Gilliam v. Guaranty Trust Co., 186 N.Y. 127, 78 N.E. 697,116 Am.St.Rep. 536. The testator...

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31 cases
  • Dailey v. Houston
    • United States
    • Mississippi Supreme Court
    • 22 Abril 1963
    ...the life tenant. Craig v. McFadden, 191 S.W. 203 (Tex.Civ.App.1916); Re Diehl's Estate, 66 Pa.Dist. & Co.R. 530 (1949); Re Burk's Will, 298 N.Y. 450, 84 N.E.2d 631 (1949), reh. den., 299 N.Y. 308, 86 N.E.2d 759, 300 N.Y. 498, 88 N.E.2d 725, Van Driele v. Kotvis, 135 Mich. 181, 97 N.W. 700 (......
  • Agricultural Nat. Bank of Pittsfield v. Schwartz
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 8 Marzo 1950
    ...Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578; Carter v. Thayer-Martin, 122 N. J. Eq. 262, 193 A. 704; Matter of Burk's Will, 298 N.Y. 450, 84 N.E.2d 631; Godfrey v. Epple, 100 Ohio St. 447, 126 N.E. 886, 11 A.L.R. 317; Restatement: Property, § It is, however, settled in this ......
  • Hecht v. City of New York
    • United States
    • New York Court of Appeals Court of Appeals
    • 15 Septiembre 1983
    ...Berman, 10 A.D.2d 838, 199 N.Y.S.2d 261; Strecker v. Kew Gardens Realty Assoc., 230 App.Div. 714, 242 N.Y.S.2d 898; cf. Matter of Burk, 298 N.Y. 450, 455, 84 N.E.2d 631). The corollary to this rule is that an appellate court's reversal or modification of a judgment as to an appealing party ......
  • Mixon v. TBV, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • 22 Junio 2010
    ...Gromet, 10 A.D.2d 977, 978 ; Frankel v. Berman, 10 A.D.2d 838 ; Strecker v. Kew Gardens Realty Assoc., 230 App.Div. 714 ; cf. Matter of Burk, 298 N.Y. 450, 455 ). The corollary to this rule is that an appellate court's reversal or modification of a judgment as to an appealing party will not......
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