In Re the Estate of Jaret , 17 N.Y.2d 450 ( 1965 )

17 N.Y.2d 450 (1965)

In the Matter of The Estate of David Jaret, Deceased. Mildred Jaret et al., as Executors of David Jaret, Deceased, et al., Appellants; Olive Jennison, Respondent.

Court of Appeals of the State of New York.

Argued November 22, 1965. Decided December 30, 1965.

Herbert Cooks for Mildred Jaret and Herman B. Forman, executors, and for Herman B. Forman, individually, appellants.

Daniel Levy for Viola Rabke, appellant.

Edward H. Freiberger for respondent.

Concur: Chief Judge DESMOND and Judges DYE, VAN VOORHIS, BURKE and BERGAN. Dissent: Judges SCILEPPI and FULD.

Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

Judge SCILEPPI dissents and votes to reverse in the following memorandum in which Judge FULD concurs: The language of the will and codicils does not contain a clear and unambiguous direction against apportionment of taxes on all legacies (Matter of Pepper, 307 N.Y. 242). However, since such a direction is present concerning taxes due on the bequests preceding article Fourth (including the bequest to the wife in the third codicil which amended article Third of the will), taxes on these legacies should be paid out of the actual residuary estate. The order of the Appellate Division should be reversed, and the matter remitted to the Surrogate's Court, Kings County, for proceedings not inconsistent with this memorandum.