Willthacher v. Hodgetts

• Decision Date: 12 May 1931
• Citation: 256 N.Y. 294,176 N.E. 399
• Parties: In re HORN'S WILL. THACHER v. HODGETTS et al.
• Court: New York Court of Appeals Court of Appeals

256 N.Y. 294

176 N.E. 399

In re HORN'S WILL.THACHER

v.HODGETTS et al.

Court of Appeals of New York.

May 12, 1931.

Proceeding by Walter H. Thacher to render and settle his account as executor of the last will and testament of Joseph Horn, deceased, involving construction of the will. A decree of the Surrogate's Court was modified by the Appellate Division (231 App. Div. 747, 245 N. Y. S. 355), and Walter H. Thacher, opposed by William Hodgetts and others, appeals.

Affirmed.Appeal from Supreme Court, Appellate Division, Second department.

Stallo Vinton and Charles A. Taussig, both of New York City, for appellant.

Cyrus B. Austin, of New York City, for respondent.

Sol D. Levy, of New York City, for residuary legatees.

CRANE, J.

By an agreed state of facts it appears that Joseph Horn, who died in Brooklyn, November 1, 1925, left a last will and testament, the second paragraph of which read as follows: ‘Second. I give and bequeath the sum of One Thousand ($1,000.00) Dollars to each of the brothers and sisters of my late wife Nellie Horn who survived her at the time of her death on January 21st, 1924, and the same sum, namely, One Thousand ($1,000.00) Dollars to the child or children by representation or as a group, of each of the brothers and sisters of my late wife who predeceased her leaving a child or children; and in the event that any of the said legatees predecease me leaving a child or children, then it is my will that the share of such legatee shall go to such child or children by representation, the child or children taking together the legacy of the deceased parent; it being my will that each of my late wife's brothers and sisters or their respective families shall receive One Thousand ($1,000.00) Dollars.’

Nellie Horn, his wife, died January 21, 1924. She had a sister, Mary Thacher Hodgetts, who had died on November 27, 1911, leaving as her sole survivor William Hodgetts, a legally adopted son.

When the testator made his will on January 3, 1925, and left $1,000 to the child of the sister of his late wife who predeceased her, leaving a child, Mary Thacher Hodgetts and her legally adopted son fitted in exactly to this description. Joseph Horn knew that this sister of his wife had died many years before, leaving an adopted son. The bequest of $1,000 was intended for him, although instead of using his name the testator described him as a child of his wife's sister who had predeceased her.

There is no doubt of the identity nor of the testator's intention, but the appellant claims that article 7, section 114 of the Domestic Relations Law (Consol. Laws, c. 14), prevents William Hodgetts from taking, under the authority of Matter of Leask, 197 N. Y. 193, 90 N. E. 652, 27 L. R. A. (N. S.) 1158, 134...