Opinion
November 12, 1953.
Appeal from Surrogate's Court of Delaware County.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ.
The will was a holographic one. In its entirety it read as follows:
"Pinewood Hotel
Fleischmanns, N Y
June 10, 1944.
I Herman Brustein in sound mind and full knowledge what I am doing hereby assign and turn over all my possessions, personal and real, notes, cash stocks, etc., upon my death to my brother Max Brustein, and want him to take as much care as he can of my late brother's Meyer Brustein, children Eleanore, Estelle Jay Brustein.
If I pass away in the town of Fleischmanns, I wish to be buried there.
Herman Brustein Ellsworth Reynolds Sydney Flisser."
The Surrogate held, we believe correctly, that the will bequeathed and devised the entire estate of the testator to his brother Max Brustein and that the reference to the children of his deceased brother, who are the appellants here, was precatory in nature and gave rise to no legally enforcible interests on their part. Decree unanimously affirmed, with costs to each of the parties filing a brief, payable out of the estate.