In re the Probate of the Last Will & Testament of Fenton ( 1937 )

Appeal from so much of a decree of the Surrogate’s Court of Westchester county construing a will as provides that a legacy of $35,000 is preferred over all other legacies and is first entitled to payment. Decree modified by striking out the provision reading: “ Ordered, Adjudged and Decreed that the legacy in the ‘ Eleventh ’ paragraph of the Will to Warden H. Fenton of $35,000.00 is preferred over all other legacies mentioned in said Will and is first entitled to payment,” and as so modified unanimously affirmed, in so far as appealed from, with costs, payable out of the estate, to all parties appearing and Sling briefs. In our opinion, the application for a preference here rests upon no other element than' that the respondent is the husband of the testatrix, which in itself is insufficient to create a presumption that the testatrix intended to prefer him. Present — 'Lazansky, P. J., Hagarty, Davis, Johnston and Adel, JJ.