In re Koch's Estate

• Decision Date: 16 April 1940
• Citation: 282 N.Y. 462,27 N.E.2d 10
• Court: New York Court of Appeals Court of Appeals
• Parties: In re KOCH'S ESTATE.

282 N.Y. 462

27 N.E.2d 10

In re KOCH'S ESTATE.

Court of Appeals of New York.

April 16, 1940.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Proceedings in the matter of the application of Louise Zuber, for a determination as to the validity, construction, or effect of disposition of property contained in the will and testament of Katharine Koch, also known as Catharine Koch, deceased. A decree construing the will was affirmed by the Supreme Court, Appellate Division, 258 App.Div. 843, 15 N.Y.S.2d 667, and Alida Koch appeals by permission granted in 258 App.Div. 1030, 17 N.Y.S.2d 886.

Order of Appellate Division and decree of Surrogate's Court reversed and matter remitted to Surrogate's Court with directions.

RIPPEY, J., dissenting.

Glenn W. Woodin, of Dunkirk, for appellant.

William J. Driscoll and Marvin G. Schwert, both of Buffalo, for respondent.

CONWAY, Judge.

The testatrix, Katharine Koch, executed her will on May 27, 1916. She gave, devised and bequeathed all her property, both real and personal, to her children, naming them, share and share alike. She then provided: ‘In case of the death of any of the above named children, I give, devise and bequeath his or her share to his or her heirs.’ Frank J. Koch was one of the children. He predeceased testatrix on December 13, 1929, leaving no issue. He was survived by his widow, Alida Koch, the appellant. At the time of the execution of the will Alida Koch was neither heir at law or next of kin of Frank J. Koch. Tillman v. Davis, 95 N.Y. 17, 47 Am.Rep. 1;Murdock v. Ward, 67 N.Y. 387;Platt v. Mickle, 137 N.Y. 106, 32 N.E. 1070. The Appellate Division decided that she was not entitled to take her husband's share of the estate, on the authority of Matter of Waring's Will, 275 N.Y. 6, 9 N.E.2d 754. Subsequent to that decision the Decedent Estate Law (Consol.Laws, ch. 13) was amended by adding section 47-c, which became effective March 28, 1938. That section provides: ‘When used in a statute, in a will or in any other written instrument prescribing the devolution of property rights and unless the statute, the will or the instrument shall expressly or impliedly declare otherwise the terms ‘heirs,’ ‘heirs at law,’ ‘next of kin’ and ‘distributees' and any terms of like import shall be deemed and shall be construed to mean the distributees, including a surviving spouse, who are defined in section eighty-three of Decedent Estate Law.’ In connection with that legislation there appears the following note of the Commission: ‘This amendment * * * is intended to supplement the amendments to Section 83 of Decedent Estate Law recommended by the Commission to Investigate Defects in the Law of Estates and subsequently enacted by the legislature. The new amendment seems to be required because of comment contained in the opinion in Matter of Waring (275 N.Y. 6, 9 N.E.2d 754). In that case the decision was made upon the basis that the language of a will of a person who died in 1907 was to be interpreted in any event in the light of the statute as it existed in 1907. In its opinion, however, the court went beyond the immediate issues in the case and said that the amendment to Section 81 of Decedent Estate Law effected by Chapter 174 of the Laws of 1930 prescribed only a rule for construction of a statute and that the amendment did not have the effect ascribed to it in the lower court decisions of the subject. The amendment proposed is designed to carry into effect the intent of the revision proposed by the Commission to Investigate Defects in the Law of Estates and to establish beyond controversy that a surviving spouse is to be deemed included among distributees as they are deemed to be defined by the words ‘heirs,’ ‘heirs at law’ and ‘next of kin’ and the like. The amendment is in line with the general purposes of the legislation in 1929 and 1930 designed better to protect surviving spouses.' (McKinney's Consol.Laws, Book 13, p. 274.)

The testatrix died December 19, 1938, subsequent to the enactment of section 47-c of Decedent Estate Law. We, thus, have a clear indication of legislative intent that the surviving spouse is to be deemed an heir at law and next of kin, at least from the effective date of section 47-c...