The father of decedent, died on April 7, 1901, a resident of the county of New York. His will was duly admitted to probate in the Surrogate’s Court of New York County on April 22, 1901, when letters testamentary were issued. The estate and trusts created under said will are administered in that county. The decedent in this proceeding had a power of appointment of the remainder of a trust created for her benefit under the will of her father. In 1942 decedent’s son, assigned his interests in said trust under the will of the father to several assignees. The propounded instrument which is the subject of this proceeding nominates decedent’s son, and his wife as executors. By her will decedent appointed one-third of the appointive property to her son, and two-thirds to a granddaughter. Citations were issued in this estate to the assignees of said son who do not oppose the probate of the will but object to the granting of letters herein to their assignor and his wife, the nominated executors.
The exercise of the power of appointment relates back to the estate of the decedent. The donor merely utilized this decedent as an instrument for the devolution of the title of his, donor’s property. The objectants have no interest in the estate of this decedent. Their interests are solely in the estate of the decedent as assignees of decedent’s son who was named in decedent’s will to receive one-third of the remainder interest of the trust created for decedent’s benefit under the will of the decedent. Whatever payments may be due the assignees will be directed in the Surrogate’s Court of New York County under the will of the decedent. As executors of this decedent, respondents will not receive any money from the Estate of the decedent in which the movants have any interest. The objections to the qualification of the nominated executors are dismissed and the motion for summary judgment is granted. Settle decree on notice.
In another case is an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (241 App. Div. 768, 270 N. Y. S. 981), entered March 30, 1934, which affirmed a decree of the Kings County Surrogate’s Court admitting to probate an instrument, dated October 30, 1930, propounded as the last will and testament of the deceased, and a codicil thereto dated June 9, 1931. Objections were filed to the probate of these instruments on the ground that they were not the last will and codicil of the deceased; that they were not duly executed; that at the time they were executed the deceased lacked testamentary capacity; and that their execution was obtained by undue influence, fraud, and conspiracy. Following a trial before a jury and after the contestants had rested, the surrogate, over the objection and exception of contestants, directed a verdict admitting the instruments in question to probate.
Accordingly, the court held that the order affirmed, with costs to respondent payable out of the estate. This is a motion in a pending probate proceeding for summary judgment and to strike out objections filed by assignees of a beneficiary under a power of appointment.
The rule provides that, in considering the effect of the codicil, we do not look to what happened, when it became operative. We seek for what the testator intended by it when arranging the disposition of his residuary estate. Will and codicil are to be read together, as one instrument, and, so read, we observe that the gift of the testator’s residuary estate was not to a class; for it was to certain persons named, in shares which were not equal, but which were definite and not dependent for their amounts upon the number who should survive.
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