In re the Estate of Robitscher , 92 Misc. 653 ( 1915 )

Fowler, S.

This is an application for letters testamentary. The testator appointed his wife sole executrix. ITe then named Benedict Joseph and two other persons, the appointment of all as executors to become effective in the event that his wife should die before he did, “ 'cmd not otherwiseIn the first codicil he named Frederick B. Joseph in place of Benedict Joseph, deceased, and declared that his will should be construed as though the name of Frederick B. Joseph were inserted therein instead of the name of Benedict Joseph. By the second codicil he confirmed his will in all respects, in the event that his wife survived him; he recited the previous change in executors, stated that Frederick B. Joseph had died, and then in similar language to that used in the first codicil provided as follows: “ I am desirous that Arthur M. Bullowa (the applicant) shall be substituted as a trustee and executor of my said will in the place and stead of the said Frederick B. Joseph, deceased, and I do hereby make, constitute and appoint the said Arthur M. Bullowa one of the executors and trustees of my said will and codicil.” The single clause above quoted, on which the applicant rests his contention, is as follows: “ and I do hereby make, constitute and appoint the said Arthur M. Bullowa one of the executors and trustees-of my said will and codicil.” The will was probated in the year 1912. Letters testamentary were issued to Esther Robitscher,. widow of the testator. She acted as executrix of the will until her death, which occurred in Hovember, 1915. There is now no representative of the estate, and Arthur M. Bullowa applies for letters testamentary. It is a well-established rule that where there is an uncertainty regarding the appointment of an executor the intent of the testator must be sought, and that slight expressions in his will may suffice to determine such intent. It is-clear that had Benedict Joseph survived the widow he would not have been entitled to letters testamentary. If the widow survived, she was to 'be the principal legatee and sole executrix. If she did not survive, other trusts were created and other executors and trustees appointed. Had Frederick B. Joseph survived the widow he could not have received letters, as he was expressly named in place of Benedict Joseph. It appears that the substitution of Arthur M. Bullowa for Frederick B. Joseph was essentially of the same character as the substitution of the latter for Benedict Joseph. The single clause on which the applicant depends cannot be considered independently from the language immediately preceding it, which is similar to that used in filling the first vacancy. The testator merely made provision for the additional executors in the event that his wife should not survive him. He made no provision for the event of her death after receiving letters. The cases cited in' support of the application I think are not in point. The proper course is to seek the appointment of an administrator with the will annexed.

Application denied.