Opinion
11-07-1952
In the Matter of the Accounting of Selma Kaufmann et al., as Executors of Berthe Wyler, Deceased.
Robert Perret for executors, petitioners.
Netter & Netter for Walter Evans and others, respondents.
COLLINS, S.
The uncontroverted facts submitted on the question of the construction of decedent's will are that, at the time of the execution of her will and at the time of her death, testatrix held certain real property through her ownership of all the stock of a realty corporation but at neither of these times was title to any real property in her own name. Testatrix inaccurately advised the draftsman of her will that she was the owner of the real property which she in fact owned only through her shares in the corporation.
The second article of the will provides: "I give, devise and bequeath any real property owned by me". The court construes the second article of decedent's will as effecting a bequest of the stock of the realty corporation wholly owned by testatrix. "What she intended to bequeath was the stock of the realty corporation which she owned, not to devise realty which she did not own. It is the substance of the attempted gift with which we are chiefly concerned, not the words in which it was attempted to be given." (Matter of Cartledge, 118 Misc. 131, 133, affd. 203 App. Div. 899, affd. 236 N.Y. 515; see, also, Matter of Manning, 196 App. Div. 575, affd. 232 N.Y. 512; Matter of Ferguson, 194 Misc. 840; Matter of Kheel, 52 N. Y. S. 2d 820; Karp. v. Twenty-Three Thirty Ryer Corp., 55 N. Y. S. 2d 856.)
Submit decree on notice construing the will and settling the account.