28 A.D.2d 1008 (1967)

In the Matter of The Estate of Laurence B. Halleran, Deceased. John A. King et al., Respondents; Gertrude D. Halleran, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 30, 1967

Orders reversed, on the law, and matter remitted to the Surrogate's Court for proceedings not inconsistent herewith, with one bill of costs to the parties filing separate briefs, payable out of the estate.

The decedent died on April 28, 1963, leaving a will in which his widow, the appellant, is the sole income beneficiary for life under a trust of the entire residuary estate. The will, dated November 20, 1959, was admitted to probate on December 5, 1963, by decree in which it was directed that the question raised by the widow concerning the validity, construction or effect of a disposition of property contained in the will be reserved for future consideration. On or about August 10, 1966 the executors of the estate filed their final account. A citation was issued and the widow again requested a construction of the will. The Surrogate issued a decision dated March 28, 1967 in which he held that the question of a construction of the will was prematurely raised and that it will only become pertinent upon the proceeding that finally settles the account of the trustees. The widow then made a motion to set aside that decision, in which she was joined by the special guardian for certain infants. The orders under review respectively denied that motion and dismissed the widow's application for a construction of the will. In our opinion, the orders must be reversed, since the interests of justice require a present construction of the will. The effect of the court's decision to postpone a determination of the widow's rights to receive a possible intestate share until after her death might amount to a taking of her property without due process of law. We do not pass upon the specific contention that the widow is presently entitled to an intestate share, leaving such question to the construction proceedings.


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