Proppe's Will, In re

Decision Date19 April 1965
Citation46 Misc.2d 247,259 N.Y.S.2d 544
PartiesIn re Probate Proceeding, WILL of George C. PROPPE, also known as George Proppe, and as George L. Proppe, Deceased. Surrogate's Court, Kings County
CourtNew York Surrogate Court

Pendry & Schneider, Brooklyn, for petitioner.

Edward J. Ledogar, Jr., Jamaica, for contestant.


The facts presented in this contested probate proceeding are not disputed. Decedent died on August 22, 1964 leaving an unattested holographic instrument dated July 21, 1964 which is testamentary in nature.

Decedent left him surviving two maternal aunts, one of whom is the proponent herein, and three first counsins, children of a predeceased paternal aunt. One of the cousins has filed objections to the probate and alternatively prays that if probate be denied, letters of administration issue to his sister who is a legatee under the propounded instrument. The proponent also alternatively prays that if probate be denied, letters of administration issue to her.

The proponent moves to dismiss the objections upon the ground that the contestant is not a distributee of decedent under article 3 of the Decedent Estate Law and not a proper person who may object to probate, as decedent's maternal aunts are nearer in degree of relationship than he (a first cousin).

The issue presented is one of law requiring a construction of subdivision 7 of section 83 of the Decedent Estate Law as amended, effective March 1, 1964, which reads as follows:

'7. If there be no surviving spouse, and no children, and no representatives of a child, and no parent, and no brothers or sisters and no person legally representing brothers and sisters who shall have died, the whole shall descend and be distributed to the surviving grandparents of the deceased in equal shares; if there be no grandparents of the deceased, (none of the above classes survived in this case) then to the issue of the grandparents in the nearest degree of kinship to the deceased.' (Emphasis supplied)

The contestant contends that the Legislature, in enacting the quoted subdivision of the statute intended to include the issue of grandparents on both sides or decedent's family in the nearest degree. It is urged by the contestant that the said language requires the division of estate assets into two equal parts and distribution in equal proportion to the issue of the maternal and paternal grandparents in nearest degree of kinship to the decedent. To adopt the contestant's interpretation, it would be necessary to read into the statute words enlarging the class of distributees to include those nearest in degree to the grandparents of decedent on both sides of the family.

Legislative Document (1963) No. 19, dated March 31, 1963 as the Second Report of the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates page (81) 23, reads as follows:

'D. Intestate Distribution--Shares Distributable.

'The proposed statute is designed to modernize the division. of the assets of an intestate decedent among his family * * *. It is intended to concentrate the succession among the nearer and dependent relations of the decedent * * *.' (Emphasis supplied)

At page (82) 24, the Commission said:

'4. Where there is no surviving spouse, descendants, parents, brothers and sisters of their descendants, succession is limited to descendants of grandparents in equal degrees to the decedent.' (Emphasis supplied)

The emphasized words indicate that the Commission's recommendation to the Legislature was designed to limit intestate succession among those 'nearer' and of 'equal degree' of relationship to decedent rather than, as contestant contends, to additional persons who are the nearest surviving issue of decedent's maternal aunt. The Commission further declared in its report on page (177) 119 under Appendix D: 'Under the proposal advanced here, grandparents would take the entire estate as is the case at present. In default of grandparents, uncles and aunts would take the entire estate * * *.' The recommendations of the Commission lead to the enactment of subdivision 7 of section 83 of Decedent Estate Law (quoted supra). As indicated by a footnote to that subdivision, by the Commission, its purpose 'is intended to avoid expensive, time consuming and often fruitless searches for distant relatives not expressly favored by the deceased and thus simplify probate and administration proceedings.'

The fact cannot be overlooked that the language used by the Legislature in said statutory amendment points to the issue of predeceased grandparents in the nearest degree of kinship to deceased. In order to adopt the contestant's contention, the plain meaning of the language of subdivision 7 would have to be ignored and additional words read into that section so as to include all persons bearing a degree of kinship to all predeceased grandparents, and disregard the clear wording and intent of the statute, to wit, 'in the nearest degree of kinship to the deceased' (Decedent Estate Law, § 83). If the Legislature had intended to include as distributees persons of different degrees of relationship to the decedent, appropriate language to that effect would have been written into the statute. The interpretation of the statute urged by the contestant would result...

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2 cases
  • Cynthia H. v. James H.
    • United States
    • New York City Court
    • January 10, 1983
  • Virginia E. E. v. Alberto S. P.
    • United States
    • New York City Court
    • April 8, 1981
    ... ... McKinney's Statutes § 74; In re Proppe's Will, 46 Misc.2d 247, 249-250, 259 N.Y.S.2d 544 (1965). When it is urged that a particular statute should be construed to cover a matter not expressly ... ...

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