Opinion
September 15, 1943.
Walter Bruchhausen for Carl H. Lammers and another, as executors of Anna G. Menken, deceased, petitioners.
Horace F. Callaghan for Gesine Matzuga, respondent.
Paul G. Gravenhorst and Jay F. Tiffany for Wartburg Orphans' Farm School of the Evangelical Lutheran Church, respondent.
On this final accounting the executors seek a construction of paragraphs "Fourteenth" and "Fifteenth" of testatrix's will.
Testatrix, by paragraph "Fourteenth", gave all her personal belongings, other than those specifically given to charity, to her cousin "to be hers absolutely, subject to the giving and distributing of certain articles contained in a list given to her with instructions to distribute the same accordingly." The list, by which testatrix attempted to dispose of certain designated items of personal property to named persons, was signed by testatrix. However, this extraneous paper was undated and unattested and admittedly not executed or attested as required by statute. The court holds that (1) the unattested paper is testamentary in nature and cannot be incorporated into the will by reference even though referred to by the will, and (2) the direction contained in paragraph "Fourteenth" of the will for distribution of the personalty in the manner set forth in the list is ineffective to pass title to the property to the persons mentioned in said memorandum. ( Booth v. Baptist Church, 126 N.Y. 215; Matter of Judge, 141 Misc. 254; Matter of Welcke, 33 N.Y.S.2d 735.) The court construes the bequest contained in paragraph "Fourteenth" as an absolute gift to the legatee named therein.
In the absence of proof as to the extent of the personal property possessed by testatrix at the date of the execution of the will and in the absence of any contention to the contrary, the will is construed to effect a charge of the general legacies against the real property of the testatrix.
Submit decree, on notice, accordingly.