Schieder's Will, Matter of
| Decision Date | 24 February 1981 |
| Citation | 436 N.Y.S.2d 591,107 Misc.2d 1029 |
| Parties | In the Matter of the Application of Clara Howard to Obtain the Determination as to the Validity, Construction or Effect of a Disposition of Property Contained in the Last WILL and Testament OF Albert J. SCHIEDER, Deceased. Surrogate's Court, Erie County |
| Court | New York Surrogate Court |
Joseph J. Lyons, Buffalo, for petitioner, Clara Howard, executrix.
James E. Rogers, North Tonawanda, for respondents, Anna Merkl, Mildred Merkl, Milfred Merkl, James Kelly and Dorothy Kelly.
Gary M. Kanaley, Hamburg, Guardian ad litem for respondent, Mary Schieder.
WILLIAM J. REGAN, Surrogate.
The Petitioner-Executrix of the Estate of Albert J. Schieder has brought this proceeding to obtain a determination as to the validity, construction or effect of the disposition of property contained in Paragraph SECOND of the Last Will and Testament of Albert J. Schieder. The Last Will and Testament of the decedent herein was executed on the 1st day of November 1979, and by Paragraph SECOND devised and bequeathed, "to my wife, MARY SCHIEDER, that portion of my estate to which she would be entitled under the laws of the State of New York were I to die intestate."
The testator in Paragraphs THIRD and FOURTH of said Last Will gave and bequeathed several watches to two of the respondents, namely, Milfred Merkl and James Kelly. The testator, by the FIFTH Paragraph, devised and bequeathed all the rest, residue and remainder of his estate to the respondents, Anna Merkl, Mildred Merkl, Dorothy Kelly, Milfred Merkl, James Kelly, and the petitioner, in equal shares.
The necessity for the instant construction proceeding becomes apparent in that the testator died leaving the respondent, Mary Schieder, and no children and no parents. Under these circumstances, the intestate share of the Estate of Albert J. Schieder would be given entirely to the respondent surviving spouse, Mary Schieder. E.P.T.L. 4-1.1(a)(5).
The petitioner contends that the intent of the testator was to give and bequeath to his wife a share equal to her "right of election" under Section 5-1.1 of the Estates, Powers and Trusts Law, and not a share which would equal her "intestate" share.
The retained attorney testified at a hearing that the testator requested that a Will be drawn for the testator wherein and whereby his wife would be given the minimum under the laws existing in the State of New York. The retained attorney recorded the testator's wish and asked another attorney to draft the Will....
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