Citation Numbers: 130 Misc. 387
Judges: Foley
Filed Date: 8/30/1927
Status: Precedential
Modified Date: 2/5/2022
This is an accounting proceeding. Objections have been filed by Ruth Miriam Goldberg Underhill, who claims to be entitled to one-third of the residuary estate. The objectant is the daughter and only child or descendant of Joseph Goldberg, a son of the decedent, who predeceased the testator by four days. The accounting parties ask that her objections be dismissed on the ground that she is not entitled to share in the residuary estate.
The issue involved necessitates a preliminary construction of the will. The determination of this question will result in either the dismissal of the objections, or a direction to proceed before the referee already appointed to hear the objections and determine the issues raised by them.
The residuary clause of the will reads as follows: “ All the rest, residue and remainder of my estate, real and personal, and wherever situated, I hereby give, devise and bequeath to my three sons, Joseph Goldberg, Shepard J. Goldberg, and Samuel Goldberg, executors and administrators, in equal shares.” Joseph Goldberg and Samuel Goldberg were named as executors of the estate of Isaac Goldberg, the decedent here. The accounting parties claim that the words used, “ executors and administrators,” display an intention on the part of the testator, in the event of the death of Joseph Goldberg, to make a substitutional gift over to his executor. The objectant, the daughter of Joseph, claims that she alone is entitled to the share bequeathed to her deceased father because of the provisions of section 29 of the Decedent Estate Law (as amd. by Laws of 1912, chap. 384). That section reads as follows: “ Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, or to a brother or sister of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate.”
I hold that the objectant is a person interested in this estate
Proceed before the referee.