Opinion
December 19, 1960
William Saxe and Seth V. Elting for Stella Harman and another, as executors, petitioners.
Perkins, Daniels, McCormack Collins for Florence F. de Mesa, respondent.
Schlesinger Krinsky ( Stuart Z. Krinsky and Earl Barrison of counsel), for Louis A. Ferris, respondent.
Abraham Kramer, as special guardian for Neal A. Ferris and others, infants, respondent.
The motion to reargue my prior decision (N.Y.L.J., Nov. 9, 1960, p. 14, col. 1) on the question of whether the legacy contained in the codicil to the will is exonerated from its proportionate share of estate taxes is granted. Item Fifth of the will dated March 21, 1953 directs the payment of taxes on the estate from the residuary to the end that the bequests and devises therein shall not in any manner be reduced on account of estate and inheritance taxes. The codicil of August 26, 1955 provides: "FIRST: I hereby amend my Last Will and Testament dated the 21st day of March, A.D., 1953 by adding thereto as though the same had originally been set forth in the said Last Will and Testament, on page numbered One (1) thereof, following the ITEM THIRD, and preceding the ITEM FOURTH, an additional item designated, `ITEM THIRD-A', in the words and figures following:" Then follows a bequest of $50,000.
The court holds that by the insertion of the legacy in the will as "ITEM THIRD-A" and before "ITEM FIFTH", the exoneration clause of the will, the testator clearly intended to exonerate the legacy from bearing any part of the estate taxes, and my prior decision is modified accordingly.
Submit decree on notice construing the will and settling the account accordingly.