In re the Construction of the Will of Brustein ( 1953 )

Appeal from a decree of the Surrogate’s Court of Delaware County, entered February 2, 1953, construing the last will and testament of the deceased.

The will was a holographic one. In its entirety it read as follows:

“ Pinewood Hotel Fleischmanns, N. Y.

June 10,1944.

I Herman Brustein in sound mind and full knowledge what I am doing hereby assign and turn over all my possessions, personal and real, notes, cash stocks, etc., upon my death to my brother Max Brustein, and want him to take as much care as he can of my late brother’s Meyer Brustein, children Eleanore, Estelle & Jay Brustein.

If I pass away in the town of Fleischmanns, I wish to be buried there.

Herman Brustein Ellsworth Reynolds Sydney Flisser.”

The Surrogate held, we believe correctly, that the will bequeathed and devised the entire estate of the testator to his brother Max Brustein and that the reference to the children of his deceased brother, who are the appellants here, was precatory in nature and gave rise to no legally enforcible interests on their part. Decree unanimously affirmed, with costs to each of the parties filing a brief, payable out of the estate. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.