In re the Construction of the Will of Whyte , 283 A.D. 947 ( 1954 )

In a proceeding to obtain a determination of the validity and construction of paragraphs of a will and a contract between the decedent and the residuary legatee, the statutory distributees and the executor appeal from a decree of the Surrogate’s Court, Westchester County, which adjudged and decreed that the contract was not incorporated by reference in the will; that the will superseded any inconsistent provision in the contract; and that the entire residuary estate was distributable to the residuary legatee in accordance with the will. Appeal by executor dismissed, without costs. The executor was not a party aggrieved by the decree and could not appeal therefrom. (Matter of Caiman, 278 App. Div. 742.) On appeal by the statutory distributees, decree unanimously affirmed, with costs to the respondent and with one bill of costs to said appellants, payable out of the estate. Under the facts established here, namely, that the respondent was in the employment of the testatrix and remained in such employment until the death of the latter, the respondent is entitled to the full residuary estate, whether the terms of the agreement of employment were or were not incorporated by reference into the will. Under the agreement there could be apportionment of the residuary only in the event that.respondent ceased to work for the testatrix. The Surrogate properly held that the agreement was not executed in accordance with section 21 of the Decedent Estate Law, and could not be incorporated into the will by reference. Present — Adel, Acting P. J., Wenzel, HaeCrate, Beldock and Hurphy, JJ. [See post, p. 1079.]