Mohr v. Cavender

Decree unanimously reversed on the law without costs and petition granted, in accordance with the following memorandum: The testator’s intent, as gleaned from a sympathetic reading of the will as an entirety (see, Matter of Larkin, 9 NY2d 88, 91; Matter of Burstein, 148 AD2d 988), was that no alternate beneficiary would succeed to the residuary interest of Barbara Bandert. The final sentence of the residuary clause is not inconsistent with this intent and is nothing more than an unartful attempt to reaffirm the testator’s previously-stated intent (see, Matter of Alexander, 58 NY2d 1066, 1069). Consequently, we grant the petition and determine that petitioner is entitled to a one-third interest in the residuary estate, Roxanne Cavender is entitled to a one-third interest, and Curtis Smith, William Smith, Michael Smith, and David Smith are each entitled to a one-twelfth interest. (Appeal from Decree of Cattaraugus County Surrogate’s Court, Horey, S.—Will Construction.) Present—Doerr, J. P., Denman, Green, Balio and Davis, JJ.