Murray's Will, In re

• Decision Date: 02 April 1964
• Citation: 198 N.E.2d 906,14 N.Y.2d 674,249 N.Y.S.2d 875
• Parties: , 198 N.E.2d 906 In re MURRAY'S WILL. Petition of Walter L. POST, as executor of the will of Elverton H. Murray, Deceased, etc. Pratt Institute, Appellant, Walter L. Post, as executor of the will of Elverton H. Murray, Deceased, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 875

249 N.Y.S.2d 875

14 N.Y.2d 674, 198 N.E.2d 906

In re MURRAY'S WILL. Petition of Walter L. POST, as executor of the will of Elverton H. Murray, Deceased, etc. Pratt Institute, Appellant, Walter L. Post, as executor of the will of Elverton H. Murray, Deceased, et al., Respondents.

Court of Appeals of New York.

April 2, 1964.

Appeal from the Surrogate's Court, New York County.

Will of testator bequeathed sum of $2,500 to his widow, $2,500 to his sister, and $5,000 to executor with direction that residuary estate be held in trust, that income be divided in equal shares and be paid to widow and sister, and that trustee should have authority in his discretion to apply such portion of principal as he should consider necessary for maintenance of widow and sister, and that remainder of trust be paid to certain institute. On the death of the testator the widow filed an election pursuant to Section 18 of the Decedent Estate Law, Consol.Laws, c. 13, to take one half of the net estate of the testator in lieu of testamentary provision.

The Surrogate's Court, New York County, Joseph A. Cox, S., 27 Misc.2d 115, 211 N.Y.S.2d 573, held that the widow had the right to take her intestate share absolutely against the will, and the institute appealed.

The Supreme Court, Appellate Division, First Department, 18 A.D.2d 795, 237 N.Y.S.2d 43, modified the decree and held that widow was not precluded from electing to take her intestate share.

The Surrogate's Court, New York County, entered an amended decree settling the accounts of the executor, and the institute appealed to the Court of Appeals.

Davidson, Dawson & Clark, New York City (Leslie D. Dawson and William B. Winship, New York City, of counsel), for appellant Pratt Institute.

Edward Holloway, New York City, for respondent Walter L. Post.

Joseph Brill, New York City (Jack C. Brill, New York City, of counsel), for respondent Concetta Murray.

Marie C. Connolly, New York City, special guardian for infant respondents.

Decree affirmed, without costs.

All concur.