Opinion
Argued August 31, 1977
Decided October 4, 1977
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, ROBERT A. HARLEM, S.
Donald W. Kramer for appellant.
William W. Millington for respondents.
MEMORANDUM.
The order should be affirmed.
In providing a general bequest for the wife, the will did so in terms of a fraction of the "estate remaining after the deduction of debts, funeral and administrative expenses". It in no other way qualified the definition of "estate" so as to create a different base for the computation of the amount of that bequest.
In the absence of the expression of a contrary intention (cf. Wetmore v Parker, 52 N.Y. 450, 463; Matter of Ginsburg, 27 Misc.2d 586, 588), a will speaks from the time of death (Beetson v Stoops, 186 N.Y. 456, 460; Matter of Gernon, 35 Misc.2d 12, 13). In this case, the decedent, upon his death, ceased to have any interest which he could pass by will in the two parcels of realty which he and his wife had come to hold as tenants by the entirety (5A Warren's Weed New York Real Property, Tenancy by Entirety, § 1.05). Consequently, the two parcels were not part of his "estate" (see Sulz v Mutual Reserve Fund Life Assn., 145 N.Y. 563, 574; Matter of Basile, 63 Misc.2d 845, 846) and may not be used in determining the amount of the widow's general bequest.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order affirmed, with costs to respondents payable out of the estate, in a memorandum.