Washburn's Will Company, In re

• Decision Date: 09 June 1966
• Citation: 271 N.Y.S.2d 994,17 N.Y.2d 895
• Parties: , 218 N.E.2d 701 In re WASHBURN'S WILL. In the Matter of the Judicial Settlement of the Final Account of Proceedings of KINGSTON TRUST COMPANY, etc., Last Will and Testament of John T. Washburn, Deceased. George V. D. HUTTON, Jr., as Administrator, etc., Appellant, v. Irving RIBSAMEN, Jr., et al., Respondents-Appellants, Kingston Hospital et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 994

271 N.Y.S.2d 994

17 N.Y.2d 895, 218 N.E.2d 701

In re WASHBURN'S WILL. In the Matter of the Judicial Settlement of the Final Account of Proceedings of KINGSTON TRUST COMPANY, etc., Last Will and Testament of John T. Washburn, Deceased. George V. D. HUTTON, Jr., as Administrator, etc., Appellant, v. Irving RIBSAMEN, Jr., et al., Respondents-Appellants, Kingston Hospital et al., Respondents.

Court of Appeals of New York.

June 9, 1966.

Appeal from Supreme Court, Appellate Division, Third Department, 24 A.D.2d 83, 264 N.Y.S.2d 33.

Lloyd R. LeFever, Kingston, for appellant George V. D. Hutton, jr., Schirmer & Carnright, Saugerties (Robert L. Carnright, Saugerties, of counsel), for appellant O'Bryon.

Connelly & Connelly, Kingston (Vincent G. Connelly, Kingston, of counsel), for appellant Anna Washburn.

Francello & Brinnier, Saugerties (Louis P. Francello, Saugerties, of counsel), for respondent Ellen Russell Finger Home for Women.

The will of John T. Washburn, Sr., created a trust for the life benefit of his son, Ward Washburn, and gave the corpus on the death of Ward to the latter's lawful issue, and if Ward should die leaving no lawful issue to testator's two sons, John T. Washburn, Jr., and George Washburn. In the event of the death of John, Jr., or George prior to death of Ward, the share of the son so dying was to go to his surviving children, and, if none, to the survivor of John, Jr., or George.

George Washburn died leaving no children or descendants. John T. Washburn, Jr., never had any children of his own but he adopted Ruth T. Washburn, who married, had a child and predeceased John T. Washburn, Jr., who predeceased Ward Washburn. Ward was the last of the brothers to die.

In a proceeding to construe the will the Surrogate's Court, Ulster County, Francis X. Tucker, S., 44 Misc.2d 56, 252 N.Y.S.2d 948, held that the surviving child of the adopted daughter of John T. Washburn, Jr., was entitled to the corpus of the trust.

On appeal, the Appellate Division, Aulisi, J., 24 A.D.2d 83, 264 N.Y.S.2d 33, held that the corpus did not pass to the child of the adopted daughter but to the residuary legatees under the will of John T. Washburn, Jr.

Appeals were taken to the Court of Appeals.

Order affirmed, with costs payable out of the trust to all parties appearing separately and filing separate briefs.

All concur.