In re Winburn's Will

CourtNew York Court of Appeals
Writing for the CourtO'BRIEN
Citation270 N.Y. 196,200 N.E. 784
PartiesIn re WINBURN'S WILL.
Decision Date03 March 1936

270 N.Y. 196
200 N.E. 784

In re WINBURN'S WILL.

Court of Appeals of New York.

March 3, 1936.


Proceeding in the matter of the estate of Michael Winburn, deceased. An order of the Appellate Division (240 App.Div. 879, 267 N.Y.S. 968), affirming a surrogate's decree construing deceased's will, was reversed with directions by the Court of Appeals (265 N.Y. 366, 193 N.E. 177), and the executors and trustees and others filed motions to amend the remittitur.

Motions denied.

[200 N.E. 785]


[270 N.Y. 197]O'BRIEN, Judge.

In this proceeding we reversed (265 N.Y. 366, 193 N.E. 177) an order of the Appellate Division affirming a decree of one of the surrogates of New York county construing the will of Michael Winburn, and held that as to one-half of the residuary, except two legacies, the testator died intestate. Our remittitur directed the surrogate to proceed in accordance with the opinion of this court, which, by necessary implication, held that the part of the estate in respect to which the testator died intestate should be distributed in accordance with the statute.

Some of the parties who were unsuccessful at the Appellate Division appealed to this court. Others of that group refrained from taking an appeal. The executors and trustees who had been successful in the Surrogate's Court and at the Appellate Division and some of the other parties in like position move to amend the remittitur by modifying the decree so as to award distributive shares only to those parties who appealed to this court and by affirming as to all other distributees who did not appeal. They rely principally upon St. John v. Andrews Institute for Girls, 192 N.Y. 382, 85 N.E. 143, and Matter of Horner's Will, 237 N.Y. 489, 143 N.E. 655.

In the prevailing opinion in the St. John Case, 192 N.Y. 382, at page 389,85 N.E. 143, 145, occurs the statement: ‘The great stumbling block in this case seems to be the apparent, if not real, incongruity of the result arrived at; that is to say, that a distribution will be made in favor of four of a certain class of defendants,[270 N.Y. 198]which is denied to two others of the class, whose rights are exactly the same.’ In Croker v. Williamson, 208 N.Y. 480, 484,102 N. E. 588, 589, this court stated this rule: ‘It is clear both upon reason and authority that no such anomalous result could be tolerated as that of judgment declaring a will invalid on general grounds as to part of the legatees and valid as to others. [Citing authorities.] Thus it appears that in the face of an action involving the general validity of a will...

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11 practice notes
  • In re Barnett, No. 66.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 7 Enero 1942
    ...the result in Merchants Discount Corp. v. Federal Street Corp., 300 Mass. 167. In New York certainly, it was the law until In Re Winburn, 270 N.Y. 196 — where the change was placed upon a recent statutory amendment — that it was not enough that the law had been misapplied by the lower court......
  • Mixon v. TBV, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • 22 Junio 2010
    ...interest in the judgment's subject matter, which itself permits no inconsistent application among the parties (see Matter of Winburn, 270 N.Y. 196, 198 [200 N.E. 784]; United States Print. & Lithograph Co. v. Powers, 233 N.Y. 143, 152-155 [135 N.E. 225] )" ( Hecht v. City of New York, 60 N.......
  • Amica Mut. Ins. Co., Matter of
    • United States
    • New York Supreme Court Appellate Division
    • 31 Diciembre 1981
    ...358 N.Y.S.2d 113, 314 N.E.2d 860; St. John v. Andrews Inst. for Girls, 192 N.Y. 382, 386, 85 N.E. 143; see, also, Matter of Winburn, 270 N.Y. 196, 200 N.E. 784; Matter of Horner, 237 N.Y. 489, 504, 143 N.E. 655; United States Printing & Lithograph Co. v. Powers, 233 N.Y. 143, 143 N.E. 655; ......
  • Hecht v. City of New York
    • United States
    • New York Court of Appeals
    • 15 Septiembre 1983
    ...subject matter, which itself permits no inconsistent Page 190 [454 N.E.2d 530] application among the parties (see Matter of Winburn, 270 N.Y. 196, 198, 200 N.E. 784; United States Print. & Lithograph Co. v. Powers, 233 N.Y. 143, 152-155, 135 N.E. It is, of course, axiomatic that, once an ap......
  • Request a trial to view additional results
11 cases
  • In re Barnett, No. 66.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 7 Enero 1942
    ...the result in Merchants Discount Corp. v. Federal Street Corp., 300 Mass. 167. In New York certainly, it was the law until In Re Winburn, 270 N.Y. 196 — where the change was placed upon a recent statutory amendment — that it was not enough that the law had been misapplied by the lower court......
  • Mixon v. TBV, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • 22 Junio 2010
    ...interest in the judgment's subject matter, which itself permits no inconsistent application among the parties (see Matter of Winburn, 270 N.Y. 196, 198 [200 N.E. 784]; United States Print. & Lithograph Co. v. Powers, 233 N.Y. 143, 152-155 [135 N.E. 225] )" ( Hecht v. City of New York, 60 N.......
  • Amica Mut. Ins. Co., Matter of
    • United States
    • New York Supreme Court Appellate Division
    • 31 Diciembre 1981
    ...358 N.Y.S.2d 113, 314 N.E.2d 860; St. John v. Andrews Inst. for Girls, 192 N.Y. 382, 386, 85 N.E. 143; see, also, Matter of Winburn, 270 N.Y. 196, 200 N.E. 784; Matter of Horner, 237 N.Y. 489, 504, 143 N.E. 655; United States Printing & Lithograph Co. v. Powers, 233 N.Y. 143, 143 N.E. 655; ......
  • Hecht v. City of New York
    • United States
    • New York Court of Appeals
    • 15 Septiembre 1983
    ...subject matter, which itself permits no inconsistent Page 190 [454 N.E.2d 530] application among the parties (see Matter of Winburn, 270 N.Y. 196, 198, 200 N.E. 784; United States Print. & Lithograph Co. v. Powers, 233 N.Y. 143, 152-155, 135 N.E. It is, of course, axiomatic that, once an ap......
  • Request a trial to view additional results

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