In re the Estate of Strait , 244 A.D. 872 ( 1935 )

Appeal from decree of the Surrogate’s Court of Rensselaer county construing the second paragraph of the last will and testament of Loren Strait, deceased, which paragraph reads as follows: “ Second. I give, devise and bequeath to my wife Mary E. Strait all my estate, real and personal of every nature for her sole use and benefit, to have and do with as she may please while living; after her death should there be anything left, or, what is left, I direct shah go to our son Walter Strait, if living.” Walter Strait, testator’s only child, died September 21, 1913, leaving three children him surviving as his only descendants. The testator died November 3, 1929, and Mary E. Strait, the widow, died October 27, 1934. She left a last will and testament devising all of her real estate to a brother, William Smith, appellant here, and who instituted this proceeding, and his wife, Alma Smith, and daughter, Vandora Shuhart. The decree of the Surrogate’s Court construed the second paragraph of the will of Loren Strait, deceased, to mean that the widow should have the use of the property therein mentioned during her lifetime and might use any and all of the property in her lifetime if she so desired and that there was no power given her to dispose by will of the real property of which decedent died seized. The surrogate further held that the devise to Walter Strait, the son, failed and testator died intestate as to the same and that the real property consequently descended to the heirs of the testator, namely, his three grandchildren, the children of Walter Strait. Decree modified by striking out the provisions as to costs, and as so modified affirmed. Hill, P. J., Rhodes, McNamee, Bliss and Heffeman, JJ., concur. •