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SPENCER v. CHILDS

1 N.Y.2d 103 (1956)

Mary P. Spencer, Respondent, v. Richard S. Childs et al., Appellants.

Court of Appeals of the State of New York.

Decided April 19, 1956.

Attorney(s) appearing for the Case

Francis A. Devin and Earl A. Darr for appellants.

James R. Cherry, Morris Shilensky and Milton Sargoy for respondent.

DESMOND, DYE and BURKE, JJ., concur with FULD, J.; VAN VOORHIS, J., votes to reverse and to dismiss the complaint upon the ground that the words of the will on which plaintiff's cause of action is based are precatory but not mandatory; CONWAY, Ch. J., and FROESSEL, J., taking no part.

FULD, J.

Plaintiff, now 87 years of age, is a sister-in-law of Nellie Childs who died in 1946; defendants are the latter's children who were named by her as executors in her last will and testament. It is a provision of that will, Paragraph Third, which now engages our attention; in it, Mrs. Childs declared:

"I request my two children, RICHARD S. CHILDS and MARY CHILDS DRAPER, or the survivor of them...

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