IN RE ESTATE OF HERCEG 747 N.Y.S.2d 901 (2002) CASE BRIEF

IN RE ESTATE OF HERCEG

747 N.Y.S.2d 901 (2002)

NATURE OF THE CASE: Colomba Pastorino (P), the executrix of a will, petitioned for a construction of a will by reading the residuary clause to be the same as the decedent's prior will, dated June 18, 1997.

FACTS: The residuary clause of the will of Eugenia Herceg, dated December 2, 1999, which was admitted to probate on August 16, 2001, reads as follows: 'All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and wheresoever the same may be situate.' The name of the intended beneficiary of the residuary is missing. As a practical matter, the residuary clause amounts to only 10% of the estate, since the will made preresiduary bequests of 90% of the net estate. P petitioned for construction of the will by reading the residuary clause to be the same as decedent's prior will dated June 18, 1997. The residuary clause of the 1997 will provided: 'All the rest, residue and remainder of the property which I may own at the time of my death, real and personal, and wheresoever the same may be situate & I give, devise and bequeath to my nephew, Sergio Pastorino, per stirpes. In the event that my nephew, Sergio Pastorino, does not survive me, his share shall go to his wife, Colomba Pastorino.' Sergio Pastorino died on November 25, 2000, without issue and Eugenia Herceg died on November 30, 2000. The persons who would take the decedent's estate in intestacy are a niece, Josephine D'Angelo, and a great nephew, Sergio Rossello. Daniel Gorman, the attorney-draftsperson of the will, has filed an affidavit stating that when the 1997 will was redrafted in 1999, using computer software 'some lines from the residuary clause were accidentally deleted.'

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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