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MATTER OF BRENER

11 N.Y.2d 423 (1962)

In the Matter of the Construction of the Will of Anna Brener, Deceased. Sidney S. Levine, as Executor of Anna Brener, Deceased, Respondent; Max Katz of Toronto, Canada, Respondent; Max Katz of New York City, Appellant.

Court of Appeals of the State of New York.

Decided July 6, 1962.

Attorney(s) appearing for the Case

Clara Tepper for appellant.

Joseph Goldman and Isidore Sapir for Max Katz of Toronto, respondent.

Bernard Lefkowitz for Sidney S. Levine, executor of Anna Brener, deceased, respondent.

Chief Judge DESMOND and Judges DYE, VAN VOORHIS, BURKE and FOSTER concur with Judge FULD; Judge FROESSEL dissents and votes to affirm upon the majority opinion at the Appellate Division.

FULD, J.

In 1944 Anna Brener died, leaving a will bequeathing a portion of her estate to "Max Katz," a relative. The testatrix had two relatives by that name, one a resident of Toronto, Canada, and the other of New York City. Following the probate of the will, a hearing was conducted to determine the identity of the Max Katz intended as legatee; the Surrogate decided in favor of Katz of New York.

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