In re the Estate of Gordon , 28 Misc. 2d 894 ( 1961 )

S. Samuel Di Falco, S.

The testator herein in Paragraph Second of his will devised and bequeathed 10% of his net estate to a named charity and in Paragraph Third thereof disposed of the rest, residue and remainder of his estate. The bequests contained in Paragraph Third come to a total of 90% and it is obvious from a reading of the will, that the testator thought he had, and intended to dispose of his entire estate. The use by the testator of the words “ net estate” in Paragraph Second is significant and clearly indicates that the charity named therein was to share in the entire balance of the estate remaining after the payment of debts, funeral and administration expenses. In effect then, the bequest in Paragraph Second was a part of the decedent’s residuary estate. It is the function of this court to effectuate the testator’s intent when such intent is clearly discernible. The court holds, therefore, that the bequests contained in Paragraphs Second and Third of the decedent’s will are to be read together as a disposition of the decedent’s entire estate. The fee and disbursements of the attorney for the executor are fixed and allowed in the sum requested.

The personal claim of the executor will be set down for hearing before me on May 26,1961 at 2:30 p.m. If any of the parties to this proceeding so desire, an intermediate decree may be submitted construing the will as hereinabove set forth.