Citation Numbers: 8 Misc. 2d 1068
Judges: Cox
Filed Date: 10/11/1957
Status: Precedential
Modified Date: 2/5/2022
The testator directed that the remainder of the residuary trust created by his will be paid to “ Maple Grove Cemetery” in the town of North Brookfield, Massa
The misdescription of the trust remainderman in the will permits resort to extrinsic evidence to explain the ambiguity (Matter of Smith, 254 N. Y. 283; Matter of Van Vliet, 224 N. Y. 572; Baumann v. Steingester, 213 N. Y. 328; Matter of Manning, 196 App. Div. 575, affd. 232 N. Y. 512). This evidence unrefuted as it is, identifies the Walnut Grove Cemetery as the legatee intended by the testator. The ownership of a plot in that cemetery, the interment of the remains of the testator’s immediate family therein and the lack of connection on the testator’s part with the other cemetery in the locality are facts establishing that, despite the misnomer in the will, the testator’s purpose was to benefit the Walnut Grove Cemetery (Matter of Jolson, 202 Misc. 907; Matter of Comfort, 201 Misc. 1119; Matter of White, N. Y. L. J., Feb. 24, 1942, p. 815, col. 1, affd. 265, App. Div. 808; Matter of Hertsig, 177 Misc. 600).
Submit decree on notice construing the will accordingly.