In re the Estate of Caprio , 14 Misc. 2d 1014 ( 1958 )

S. Samuel Di Falco, S.

In this proceeding for the settlement of the account of the Public Administrator as administrator c. t. a., construction of the will is required. The deceased executed his will while residing in Italy. It was established in that country before a notary in accordance with the laws of the place of execution. In it, the testator provided: “ Stricken by a severe ailment but in full possession of my mental faculties I Di Caprio Vincenzo, son of the late Pasquale, of Maddaloni, wish to make provisions relative to my small property so that the whole matter shall be settled for my beloved family. From my marriage to my wife As sun t. a Riccio, daughter of the late Pietro, still living, four children were born named Pasquale, Antonio, Palma and Rosa, the latter still a minor. Because of my predilection for my son Antonio, I make him the heir of that share of my real and personal property which will remain available, while the mandatory share shall be distributed among all of them, my four descendants who will come to an agreement so as not to break the unity of said property. ’ ’ An affidavit of Italian law has been submitted in connection with the problem which is presented in this proceeding.

The deceased was survived by his wife and four children. His wife died without having made any attempt to exercise her right of election, if one in fact existed, or to enjoy the usufruct of her share of the deceased’s property in accordance with the laws of Italy. Section 542 of the Italian Civil Code provides that a deceased survived by a spouse and descendants has free disposition of only one third of his total estate, the balance going to l he children subject to a usufruct as to one fourth thereof in favor of the surviving spouse.

Under these circumstances, the testator’s unquestionable intention to make his son Antonio the recipient of the one-third part of his property which he was free to dispose of can readily he effectuated and the court so construes the will holding that the balance passes in equal shares to all of the children including Antonio.

Submit decree on notice settling the account as filed and construing the will in accordance with the foregoing.