Opinion
Argued April 15, 1954
Decided May 27, 1954
Appeal from the Supreme Court, Appellate Division, Third Department, ROGAN, S.
John J. Scully and William F. Hahn, Jr., in person, for William F. Hahn, Jr., appellant.
Max H. Zuckerman and Vernon Stuart for Le Roy Crounse and others, respondents.
Order affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the estate.
Concur: DESMOND, FULD, FROESSEL and VAN VOORHIS, JJ. DYE, J. dissents in the following memorandum in which LEWIS, Ch. J., and CONWAY, J., concur.
I dissent and vote to reverse. When the testatrix directed the residue of her estate to be distributed "in such proportions or ratio as my said husband distributed his residuary estate", she intended an unequal division thereof in the ratio used by the husband. The husband had directed that the residue of his estate "be divided and distributed ratably to increase said legacies". The words "proportions" and "ratio" in the setting used by the testatrix, when read with "ratably" as used by her husband, make such an intention crystal clear, particularly as the Surrogate's decree on judicial settlement of her husband's estate had given effect to a ratable division thereof and, in so providing, had met with her approval, notwithstanding that such decree diminished her distributive share in that estate.