Opinion
September 10, 1957
Nathaniel L. Rock for Irene Steiner, petitioner.
Frank McGlynn, special guardian for Andrea Jeromos.
In this construction proceeding, petitioner seeks an interpretation of two provisions of the will of Josephine Jeromos, admitted to probate on December 27, 1956.
The first of the provisions in question is a devise of testatrix' interest in a parcel of real property to her son Andrew Jeromos, "with the condition that he can dispose of the house only to his daughter, Andrea Jeromos and to no one else." The court construes this provision as a gift of an estate in fee to Andrew Jeromos. The attempt of the testatrix to limit her son's power of alienation to a specific person is void as repugnant to the nature of the estate created. ( Schermerhorn v. Negus, 1 Denio 448; Hacker v. Hacker, 153 App. Div. 270; Matter of Tallman, 131 Misc. 863.)
Petitioner also seeks construction of a provision by which testatrix directed that the sum of $100, annually, be paid to her daughter, Bozzay Zottanne, out of the income from the real property devised to her son, for a period of six years following her death. Clearly, this provision creates a charge on the interest in said property passing to the son of the testatrix under this will. The portions of this provision purporting to create a charge against interests in real property which did not belong to the testatrix at the time of her death are of course ineffectual. Submit decree construing the will accordingly, on notice.