In re Culeton

Order unanimously reversed on the law with costs, in accordance with the following memorandum: Josie and Edward Fitzgerald, both previously married and each the parent of three children, executed a joint will leaving everything to each other and providing for all six children in the event that they died simultaneously. The will was silent with respect to disposition of property upon the death of the survivor if they did not die simultaneously. Josie died 2 years and 8 months after Edward, and therefore died intestate. The court erred in finding a gift by implication to all six children (Matter of Kronen, 67 NY2d 587; Matter of Imperato, 44 Misc 2d 639, revd 24 AD2d 598, revd for reasons stated by Sur Ct 18 NY2d 825). (Appeal from order of Oswego County Surrogate’s Court, Murray, S.—will construction.) Present—Doerr, J. P., Green, Pine, Balio and Davis, JJ.