Opinion
February 18, 1971
Decree, Surrogate's Court, Bronx County, entered October 27, 1970, reversed, on the law, and petition of Pearl Billig denied and petition of Hendler granted with $50 costs and disbursements to all parties filing briefs payable out of the estate. The order is in a proceeding in which two petitions for the construction of a will were consolidated. The question presented concerns the validity of the designation of Pearl Billig as successor executrix. The decedent named in his will his brother Benjamin Billig and the petitioner Janet Hendler as executors and trustees. Benjamin Billig died June 24, 1970, leaving an instrument dated June 23, 1963, by which he purported to designate his wife Pearl Billig as a successor executor and trustee upon his death. The will (Article ELEVENTH) provides for the appointment of Benjamin Billig and Janet Hendler as executors and trustees. If either of them fails to qualify or continue to act for any reason, all the powers and duties of an executor and trustee devolve upon the other. In that event the remaining executor and trustee shall have the right to name a successor. Both executors qualified and continued to act until Benjamin Billig's death. The article is perfectly definite and clear and leaves no room for interpretation contrary to its explicit terms. Upon the failure of one of the designated executors to continue to act, the other has full powers and remains sole executor. It is only that one who is given power to name a successor.
Concur — Nunez, J.P., Kupferman, McNally and Steuer, JJ.