In re FORT'S ESTATE. (Surrogate's Court, New York County. January 12, 1925.) 1. Wills 601 (2)—Will held to manifest intention to make an absolute gift to testatrix's husband; "any residue of my estate." Will by which testatrix, after providing for payment of her lawful debts and funeral expenses, bequeathed all her estate, personal property, etc., to her husband, and, in event of his death, "any residue of my estate" to be divided among certain beneficiaries, held to manifest an intention to make an absolute gift to the husband, and that he should be the primary object of her bounty; "any residue of my estate" referring to residue, after payment of her lawful debts and funeral expenses. 2. Wills 601(1)—Estate cannot be limited by subsequent words not as clear and decisive as words giving estate. When an estate is conveyed in one clause of an instrument by clear and decisive terms, it cannot be cut down or limited by subsequent words, that are not as clear and decisive as words giving estate. 3. Wills 538-Devise to one person absolutely, and in case of his death to another, construed. Where there is a devise to one person absolutely, and in case of his death to another, contingency referred to is the death in the lifetime of testator. In the matter of the estate of Iva B. Fort. Proceeding to construe the will of Iva B. Fort. Decree in accordance with opinion. Dean, King & Smith, of New York City, for executrix. George L. Donnelan, of New York City, special guardian, for infants. O'BRIEN, S. This is a proceeding to construe the will of testatrix, the first three paragraphs of which read as follows: "1. First, after my lawful debts are paid and a sum set aside to cover the costs of burial, headstone for grave, and upkeep of plot.` "2. All my estate, personal property, etc., household effects, sundry valuables and securities in safe deposit box No. 296 at the Colonial Bank, Money on deposit with the following banks: The Bowery Savings Bank, the Irving Bank and the Empire Bank. I give to my beloved husband Bruce H. Fort. "3. In the event of the death of My beloved husband, any residue of my estate shall be divided equally among the children of my beloved nephews, Clarence Sears and Bruce Gilson." Testatrix died August 31, 1923, survived by her husband, Bruce H. Fort, who died September 19, 1923. A question has been raised as to the distribution of the estate of testatrix. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (211 N.Y.S.) [1-3] It is contended by the special guardian appointed for the infant children of the two nephews of textatrix mentioned in the will that Bruce H. Fort received a life estate, with power of consumption during his lifetime, and that the remainder vested in the children of her nephews. He bases his contention on the wording of paragraph 3. His position, however, is not sustained by either argument or authority. The simple and natural interpretation to be given the language used in all of the three paragraphs of the will is that she clearly intended to make an absolute gift to her husband, and that he should be the primary object of her bounty. Moreover, the rule is well settled that, when an estate is conveyed in one clause of an instrument by clear and decisive terms, it cannot be cut down or limited by subsequent words that are not as clear and decisive as the words of the clause giving the estate. Roseboom v. Roseboom, 81 N. Y. 356; Stokes v. Weston, 142 N. Y. 433, 37 N. E. 515; Banzer v. Banzer, 156 N. Y. 429, 51 N. E. 291; Tillman v. Ogren, 227 N. Y. 495, 125 N. E. 821; Weber v. Kress, 198 App. Div. 687, 192 N. Y. S. 186; Matter of Mead, 115 Misc. Rep. 481, 190 N. Y. S. 123. The bequest in the paragraph marked 2 is simple, clear, and decisive, and there are no terms in paragraph 3, equally definite and clear, limiting this gift or cutting it down. It may be argued, further, that had the testatrix intended such a limitation she would have used language to express such an intention. Again, it is well settled rule that where there is a devise to one person absolutely, and in case of his death to another, the contingency referred to is the death in the lifetime of the testator. Kelly v. Kelly, 61 N. Y. 47; Quackenboss v. Kingsland, 102 N. Y. 128, 6 N. E. 121, 55 Am. Rep. 771; Vanderzee v. Slingerland, 103 N. Y. 47, 8 N. E. 247, 57 Am. Rep. 701; Matter of New York L. & W. Ry. Co., 105 N. Y. 89, 93, 11 N. E. 492; Fowler v. Ingersoll, 127 N. Y. 472, 476, 28 N. E. 471; Matter of Denton, 137 N. Y. 428, 434, 33 N. E. 482. The provision for the division among the children of her nephews was merely by way of substitution in the event of the death of her husband prior to her death. By the words "any residue of my estate" she intended the residue after the payment of her lawful debts and funeral expenses. Bruce H. Fort having survived testatrix, but having since died, the share of decedent's estate to which he became entitled should be paid to the administrators of his estate. Submit decree accordingly. (125 Misc. Rep. 505) In re MORATH'S ESTATE. (Surrogate's Court, Oneida County. July 31, 1925.) Executors and administrators 509(4)-—Application to vacate judicial settlement denied, where neither fraud nor secrecy shown in administration of estate under agreement to carry out wishes of decedent. Instrument intended to be a will was neither dated nor witnessed. Adult heirs of decedent agreed to carry out his wishes as expressed in instrument. Estate was administered in usual manner, and decree of judicial settlement was entered 17 months after agreement; infant heirs being paid share according to law of descent and distribution instead of sums named in instrument. Held, in application by brother to set aside judicial settlement, there being no secrecy as to amount and inventory of estate and no haste in paying off parties to agreement, there was neither fraud nor secrecy within Surrogate's Court Act, § 20, subd. 6, authorizing vacation of settlement. In the matter of the estate of Charles Morath, deceased. Application by Henry Morath to vacate and set aside decree of judicial settlement. Denied. Harry M., Garvey, of Utica (Lee, Dowling & Brennan, of Utica, of counsel), for petitioners. Smith Johnson, of Utica, special guardian for infants James Morath and others. Miller & Hubbell, of Utica, for administrator, respondent. EVANS, S. Henry Morath, one of the heirs at law and next of kin of the above-named decedent, has applied to this court to vacate and set aside a decree of judicial settlement in this estate bearing date the 28th day of July 1924. The facts on which this application is based are unusual, and a decision was possible only after a hearing at which several witnesses were examined at considerable length. The decedent was an unmarried man, and died in the city of Rochester, N. Y., on the 19th day of February, 1923. He resided in the city of Utica, where his body was brought for burial. He left him surviving three brothers, Henry, George, and Frank, one sister, Josephine E. Firsching, and five nephews and one niece, the children of Joseph Morath, a deceased brother of the decedent. The funeral was held at the residence of Frank Morath, No. 923 Whitesboro street, Utica, N. Y., after which the relatives returned for lunch. At the request of Frank Morath they assembled in the parlor, and he produced a document that he stated was a will of his brother Charles. He asked that some one read it aloud, which was done by Rosina Morath, a niece. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (211 N.Y.S.) This instrument was in the usual form of a will, in the handwriting of the decedent, and signed by him. It contained an attestation clause with a blank space for witnesses. It bore no date except "A. D. 192-," which tends to show that it was written during or subsequent to the year 1920. The instrument by its terms was clear and explicit. The language used. gives evidence of careful preparation by a man of education and intelligence. In substance, the instrument bequeathed the sum of $500 each to his brother Henry, his sister, Josephine Firsching, and to a sister-in-law, Catherine Morath. The sum of $100 was bequeathed to his brother George, who is a Christian Brother now stationed at St. Joseph's Convent, Utica, N. Y. The sum of $300 each bequeathed to five nephews and two nieces. The sum of $50 each was bequeathed to four children named Norton. The sum of $100 was bequeathed to St. Joseph's Church, Utica, and the sum of $1,000 to the wards of St. John's Orphan Asylum, Utica. All of the residue of real and personal property was devised and bequeathed to the brother Frank, who was named executor to act without bond. It is conceded that the signature and entire body of the instrument is in the handwriting of the decedent. At the conclusion of the reading of the instrument, the observation was made by Lee M. Firsching (the husband of Josephine) that the paper bore no date and was not witnessed and was not a will. To this proposition Frank Morath agreed, and something was said about employing an attorney. The evidence shows that the relatives there assembled fully understood that the instrument was not a will. Another meeting of the relatives was held at the residence of Frank Morath on February 28, 1923. There were present Henry Morath, Frank Morath, Josephine E. Firsching, Mary Morath, Francis Morath, and Charles Morath, all of the adult heirs at law and next of kin of the deceased with the exception of George Morath. At this meeting an attorney procured by Frank Morath was present, and had a proposed agreement to be signed by the adult heirs at law and next of kin of the decedent which, in substance, provided that the provisions of the instrument left by the decedent should be carried out in accordance with his wishes there expressed, and the property of his estate divided among the persons and institutions mentioned in the instrument. This agreement was signed and acknowledged by those present, and waivers executed permitting the appointment of Frank Morath as administrator of the estate. Mr. Morath filed his petition and bond in the sum of $15,000. The estate was administered in the usual manner, and a decree of judicial settlement was signed by the late Surrogate Jones on July 28, 1924. Thus it appears that 17 months elapsed from the date of the execution of the agreement to the time of final settlement. The account shows a gross estate amounting to $20,178.76. The dis 1 bursements including funeral expenses, administration expenses, debts, and administrator's commissions amounted to $2,706.27, leaving a net estate of $16,902.63. The infants James, John, and George Morath, mentioned in the instrument left by the decedent, were not parties to the agreement on account of their infancy. The amount designated in the instrument for each of said infants was $300, but, by reason of the intestacy of the decedent, each of said infants was paid his share according to the law of descent and distribution, amounting to $563.42. The sum of $2,391.80 was realized from the sale of real property in the state of Washington. After the payment of legacies to persons and institutions mentioned in the instrument, the sum of $13,504.17 represented the share of Frank Morath. The petitioner, Henry Morath, alleges that he has been defrauded and deprived of his legal rights in this estate. The power of the Surrogate's Court to grant the relief sought is contained in subdivision 6 of section 20 of the Surrogate's Court Act (Laws 1920, c. 928), which provides that a surrogate may "open, vacate, modify, or set aside, or to enter as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error or other sufficient cause." It is obvious that the stability of a court requires that its judgments and decrees should not be disturbed except for sound reasons. The petitioner asserts that, at the time he executed the agreement with the other heirs at law and next of kin of the decedent, he was ignorant of the amount of the estate. He claims that his brother Frank Morath was in possession of this information, which was purposely withheld. There is no direct evidence of this, but there is evidence that no inquiry as to the amount of the estate was made by the petitioner or by any of the parties to the agreement. It is evident that the relatives of Charles Morath desired to give vitality and legal force to the instrument that he had prepared, and which lacked the formality of being published and witnessed to make it a valid will. In this they displayed an unselfish spirit and a commendable sentiment toward the memory of their deceased brother. By the execution of the agreement they distributed the property of the decedent in accordance with his written directions. The fact remains, however, that the decedent died intestate, and it is with the rights of the petitioner as an heir at law and next of kin that we have to deal. The petitioner is a middle aged man of intelligence and fair education. The instrument of February 28, 1923, was executed by the petitioner and the other heirs at law and next of kin at a meeting where they were all present with one exception. It was done under circumstances that would naturally create a full and free discussion among the relatives. |