In re the Probate of the Will of Hampton , 3 Misc. 2d 141 ( 1956 )

Samuel Faile, S.

The Public Administrator of Westchester County has instituted this proceeding for the probate of the wall and for his appointment as administrator c. t. a. An answer has been filed by a sister of decedent challenging the petitioner’s right to appointment, and alleging that she and the son of a brother who predeceased decedent are the sole distributees. The answer alleges her prior right to appointment over petitioner pursuant to subdivision 3 of section 133 of the Surrogate’s Court Act.

By his will the decedent named his wdfe as sole executor and devised and 'bequeathed his entire estate to his wife as follows: “third — I give, devise and bequeath all of my estate, both real, personal or mixed, of every kind and description and wheresoever situated, and which shall belong to me or be subject to my disposal at the time of my death, after the payment of my just debts, funeral expenses and the expenses of administration of my estate unto my wife, Grace Emery Hampton, her heirs, executors and assigns absolutely and forever

The wdfe of decedent having predeceased him, there is a lapse of any benefits which she otherwise would have become entitled to receive under the wall. The provision in favor of the wife ‘1 her heirs, executors and assigns absolutely and forever ’ ’ are words of limitation and not of purchase. The words ‘ ‘ and his heirs forever ”, “ and his heirs and assigns ”, “ and his heirs, executors and administrators ” and like expressions are commonly used when an estate in fee simple is intended to be conveyed and such phrases are generally accepted as describing the nature of the estate and not as conveying any interest to the heirs of the grantee. (See Matter of Barrett, 141 Misc. 637, 641-643.)

It appearing that the nephew of decedent and the only other distributee is a nonresident alien and disqualified from receiving letters under subdivision 3 of section 94 of the Surrogate’s Court Act, letters of administration with the wall annexed are directed to be issued to the sister of decedent upon her duly qualifying and filing a duly approved bond in the amount of $5,000.

Settle decree,