Kahan's Estate, In re

• Decision Date: 02 November 1955
• Citation: 208 Misc. 872,145 N.Y.S.2d 526
• Parties: In re KAHAN'S ESTATE. In the Matter of the Judicial Settlement of the Account of Proceedings of Sylvia K. KAISER, as Executrix of Kalman Kahan, Deceased. Surrogate's Court, Bronx County
• Court: New York Surrogate Court

Page 526

145 N.Y.S.2d 526

208 Misc. 872

In re KAHAN'S ESTATE In the Matter of the Judicial Settlement of the Account of Proceedings of Sylvia K. KAISER, as Executrix of Kalman Kahan, Deceased.

Surrogate's Court, Bronx County.

Nov. 2, 1955.

Shapiro & Singer, New York City, for petitioner-executrix.

Lopin & Jacobson, New York City, for the widow, Alice Kahan.

Joseph C. DiCarlo, New York City, special guardian for infants, Freida Rubenstein and Gertrude Rubenstein.

McGRATH, Surrogate.

In this accounting by the executrix, a construction of the will is requested in order to determine the amount to which Alice Kahan, the widow of the decedent, is entitled.

Paragraph 'Fourth' reads as follows:

'I give devise and bequeath to my beloved wife, Alice Kahan, one-half of all my property, at the time of my death. In the event, however, that the one-half share of my wife shall exceed the sum of Two thousand five hundred dollars then and in that event she shall receive the sum of only Two thousand five hundred dollars, and I further give, devise and bequeath to my trustee, hereinafter named, a sum equal to the share in my estate to which my wife would have been entitled had I died intestate reduced by the sum of Two thousand five hundred dollars herein bequeathed to my wife, in trust nevertheless, to invest, reinvest and keep the same invested, and to pay over or apply the net income therefrom to the use of my said wife during her natural life, and upon her death to convey, transfer and pay over the principal thereof to the residuary legatees, hereinafter named. The foregoing provisions for my wife are in lieu of any statutory interest given by law.'

The question to be decided is whether the testator intended a bequest of 'a sum equal to the share in my estate to which my wife would have been entitled had I died intestate' to be that provided for in § 83, subd. 4, of the Decedent Estate Law, under which she would receive $10,000 and one half of the residue of the estate, or that provided for in § 18 of the Decedent Estate Law, under which she could in no event receive more than one half of the net estate.

The widow urges that in view of the fact that the net estate is less than $10,000 the words quoted in the preceding paragraph entitle her to a trust in the entire net estate reduced by the sum of $2,500. The widow further contends that the meaning of the quoted words aforesaid are plain and unambiguous, that they are clearly expressive of the testator's intention, and that giving to these words their common and ordinary meaning conforms to the expressed intention of the testator.

The executrix and the special guardian, on the other hand, urge that the testator had in mind § 18 of the Decedent Estate Law when his will was drawn and that the...