Paul's Estate, In re

• Decision Date: 22 April 1958
• Citation: 175 N.Y.S.2d 93,12 Misc.2d 194
• Parties: In re Estate of Jannie PAUL. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 93

175 N.Y.S.2d 93

12 Misc.2d 194

In re Estate of Jannie PAUL.

Surrogate's Court, New York County.

April 22, 1958.

Julius Datler, Rego Park, for Morris A. Green, for petitioner.

Finkelstein, Benton & Soll, New York City, for United Haias Service, respondent.

Bachrach & Bisgyer, Brooklyn, for Jewish Chronic Disease Hospital, respondent.

Benjamin Esberg, New York City, for Jacob Paul, respondent.

Louis J. Lefkowitz, Atty. Gen., of the State of New York (Tony Berman, Deputy Atty. Gen., of counsel), for ultimate, indefinite and uncertain charitable beneficiaries, respondents.

COX, Surrogate.

In this proceeding to settle the account of the executor a construction has been requested to determine (1) whether the holographic instrument dated October 26, 1953 admitted to probate by decree of this court on the 5th day of December, 1953 as a codicil to the last will and testament of the deceased, is in fact a codicil merely revoking certain charitable bequests made in the will of March 6, 1952 or does the said instrument revoke the whole of said will dated March 6, 1952? (2) Whether the bequest contained in the codicil to Haias is a bequest of $1 or a bequest of $100? (3) For identification of the legatees referred to in the codicil as 'Home of Incurables,' 'Haias' and 'Kamentizer Yeshiva.'

In addition, the court is asked to determine the ownership of a certificate for six shares of stock and income debenture of the Hillman Housing Corporation, which were apparently in the decedent's name at the time of her death and represents ownership in a cooperative apartment, the husband now claiming such ownership.

Objections to the will have been filed on behalf of the husband alleging that the will was in fact revoked; alleging that the instrument dated October 26, 1953 was not a codicil but was in effect the last will and testament of the decedent; objecting to the issuance of letters testamentary and letters of trusteeship to Morris A. Green, the executor and trustee named in the will dated March 6, 1952 and asking his removal as executor and trustee on the grounds that his appointment was revoked by the instrument dated April 26, 1953 and upon other grounds which shall be ruled upon later on in this decision.

The question to be determined therefore, is whether the words 'I revoked a will previously written by me leaving money to Haias, Home of the Sages and Incurables' contained in the instrument dated October 26, 1953 were intended by the decedent to effect a complete revocation of her prior will or merely to effect a revocation of the bequests to the named charitable institutions. This intent, if possible, must be spelled out of the words of the will and the subsequent instrument sought to be construed (125 A.L.R. 936 and cases cited therein). Immediately after the words quoted above the decedent made the following dispositive provisions: 'I hereby bequeath the following:

"Home of Incurables $100.00

Haias $100

Kamenitzer Yeshiva $100 " "

The instrument was then signed by the testatrix and properly witnessed. As can be seen, the holographic instrument dated October 26, 1953 which the objectant claims to be the last will and testament of the decedent disposes of only $300 of an estate of approximately $8,000. The will dated March 6, 1952, executed just one and one-half years prior to said 'codicil' which was apparently prepared by an attorney upon instructions of the decedent, disposed of all her property and the decedent was careful therein to give to her husband only his exact share pursuant to section 18 of the Decedent Estate Law.

In Matter of Purdy's Will, Sur., 20 N.Y.S. 307, the decedent executed two undated printed form wills, each of which contained printed revocation clauses, each will however, disposed of different property and the court held that one will was to be admitted as such and the other as a codicil thereto. See also Matter of Benaglia's Estate, 195 Misc. 680, 89 N.Y.S.2d 383. In Matter of Smith's Will, 254 N.Y. 283, 172 N.E. 499, 72 A.L.R. 867, the decedent executed a will in New York in 1911 and one in Florida in 1924. The Florida will contained the printed clause 'hereby revoking all...