In re the Estate of Steiner , 118 N.Y.S. 833 ( 1909 )

Gaynor, J.:

Unless the respondent be entitled to a distributive share, legacy, “ or other pecuniary provision ”, of the testator’s estate, she had no standing to require the executor to account (Code Civ. Pro. §§ 2725, 2726). The learned Surrogate held that she is entitled to “ a pecuniary provision under the will ”, but did not state what it is. The brief of the learned counsel for the appellant says that the second paragraph of the will leaves all of the testator’s estate to the appellant, who is the testator’s son and executor, “ to use it for the benefit of himself and his sisters ” (and then professing to literally quote the words of the will) “in such portion, in such terms, and in such manner as he * * " shall in his judgment and discretion deem right and advisable ”. Turning to the said paragraph the words are found to be “ in such proportions and at such times and in such manner as he * * * Eshall in his judgment and discretion deem proper, right and advisable”. Later on in his brief the learned counsel refers to the late eminent Judge Rapallo of our Court of Appeals as “ Rapolli, J.” It is growing irksome to have such briefs and papers submitted by members of our learned profession.

When the said paragraph of the will is read in its entirety, it is found to give the legal title of the entire estate to the appellant individually, “to use it for the benefit of himself and my other hereinbefore named children ”, which includes the respondent, “ in such proportions and at such times and in such manner as he * * * shall in his judgment and discretion deem proper, right and advisable”. With this, and in the doing of it by the testator, is coupled an expression of her “full confidence in the ability, integrity and sense of justice and fairness of my said son, and in his love for me and regard for my wishes ”. But these precatory words do not impose any legal duty or trust upon the son. All is left to his discretion. He may give such amount to his sisters as he may choose to, or nothing. Whatever he gives is of his own discretion and bounty, and not out of any obligation imposed on him by the will (Lawrence v. Cooke, 104 N. Y. 632). The language of the will in Matter of Conner (6 App. Div. 594) is different. There the direction ivas to “ distribute and apportion ” among wife and children, and only the manner and time were left to the judgment of the executors, and not the “ proportion ” that should be given to each. The testator required them to “ apportion ” the estate, and that general direction meant, as is provided by statute, share and share alike (1 R. S. p. 134, § 98). The next section of the statute would apply to the present. case if the appellant were a trustee, and its express words uphold him in giving the respondent nothing, that being left to his discretion.

The order should be reversed and the petition denied.

Rich and Miller, JJ., concurred; Hirschberg, P. J., and Burr, J., concurred in result.

Order of the Surrogate’s Court of Kings county reversed, with ten dollars costs and disbursements, and application denied, with costs.