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In re Judicial Settlement of the Accounts of Myhill

Supreme Court of New York, Appellate Division

March 6, 1912

In the Matter of the Judicial Settlement of the Accounts of JOHN G. MYHILL, as Executor and Trustee of the Last Will and Testament of GEORGE OVER, Deceased. IDA MYHILL and Others, Appellants; FREDERICK W. SKITTLETHORPE and WALTER CHARLES SKITTLETHORPE, Respondents.

APPEAL by Ida Myhill and others from a decree of the Surrogate's Court of the county of Orleans, entered in said Surrogate's Court on the 7th day of August, 1911, upon the judicial settlement of the accounts of John G. Myhill.

COUNSEL

S.E. Filkins, for the appellant.

Albert C. Burrows, for the respondents.

Ramsdale & Church, for John G. Myhill, as executor, etc.

KRUSE, J.:

The disposing part of the last will and testament of George Over, late of the town of Gaines, Orleans county, is as follows:

'First: After all my lawful debts are paid and discharged, I give, and bequeath to my wife, Augusta Over (provided she should survive me) the use of all my property, both real and personal. Should the income from said property be insufficient for her support she is privileged to dispose of any portion

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thereof. At her death I direct that the residue of said property be equally divided between Mrs. Ida Myhill and Mrs. Addie Parker both of Millville, N.Y. , Mrs. Jessie Smith, who is a daughter of my wife, Mrs. Mary Tills, of Gaines, N.Y. , and my niece Mrs. Mary Jane Kittlethorpe and her six children now living and who reside in Southampton, England.

'Should any of the above named legatees die previous to the death of myself and wife the said property shall be equally divided between the legatees who are living. Should any of the above named legatees dispute this my last will and testament, they shall be debarred from any portion of said property.'

The italics are mine and the punctuation in that part of the disposing clause which relates to the disposition of the residue of the estate is precisely as above.

Mary Tills, named in the will, died after the testator but before the death of his widow. It is not claimed that she has any interest in the estate.

Mary Jane Kittlethorpe, or Skittlethorpe, which is her correct name, had eight children instead of six, living at the time the will was made and at the time of the death of the testator.

The question is whether the residuary estate shall be divided into four parts, giving to Mrs. Skittlethorpe and her children one share and to the other three legatees named one share each, or, as the surrogate held, into twelve parts, giving an ...


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