Murray's Estate, In re

• Decision Date: 21 December 1960
• Citation: 211 N.Y.S.2d 573,27 Misc.2d 115
• Parties: In re ESTATE of Elverton H. MURRAY. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 573

211 N.Y.S.2d 573

27 Misc.2d 115

In re ESTATE of Elverton H. MURRAY.

Surrogate's Court, New York County.

Dec. 21, 1960.

Edward Holloway, New York City, for Walter L. Post, executor, petitioner.

Joseph Brill, New York City, for Concetta Murray, respondent.

Davidson, Dawson & Clark, New York City, for Pratt Institute, respondent.

Marie C. Connolly, New York City, Special Guardian for Mary Elizabeth Harriman and others, infants, respondents. JOSEPH A. COX, Surrogate.

Question is presented in this accounting proceeding as to the validity and effect of the notice of election filed by the testator's widow pursuant to Decedent Estate Law, § 18. The testator was survived by a widow and children. His will provides the widow a general legacy of $2,500 and, after making disposition of other property, bequeaths the residuary estate in trust, with directions to his trustee as follow:

'(a) To hold, manage, invest and reinvest the same and to collect and receive the income therefrom, and to divide the said income in two equal shares, and to pay one share of said income to my wife, Concetta, for life and to pay one share thereof to my sister, Mary Murray Grant, for life.

'In the event that my wife shall not be married to me at the time of my death, or shall predecease my sister, Mary, I direct that all of said income shall be paid to my sister Mary for life.

'In the event that my sister Mary shall predecease my wife, I direct that the sum of Two thousand ($2,000.00) dollars be paid to each of the children then living of my nieces and nephews, who are the children of Gertrude Hinckley, Elizabeth Luttrell, Louis R. Harriman and Herbert F. Harriman, and that the balance of the share of my sister be paid to the Trustee hereinafter named and included in the trust established in the fifth paragraph of my will and that the entire income be paid to my wife for life.

'After the death of both my wife and my sister Mary, and after the payment as hereinbefore provided, to the children of my nieces and nephews, I direct my trustee to pay the balance remaining in trust, including accumulated earnings, if any, to Pratt Institute of Brooklyn, New York, to establish a fund to be known as the 'Murray-Kelleher Fund'. * * *.'

The quoted provisions create a single trust of the residuary estate with the widow and the sister equally sharing the income and, were there no later limitation upon the widow's income, the quoted language would present only a question as to whether the widow's general legacy added to the principal amount of one-half of the residuary estate would be the equivalent of her intestate share as such share is defined in Decedent Estate Law, § 18. However, because of a later will provision, that question as to the existence of a limited right of election is removed from the proceeding. This later provision constitutes the sixth article of the will and reads:

'Sixth: I authorize my Trustee in his sole and uncontrolled discretion to apply such portion of the principal as ...