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MATTER OF MCMANUS

62 A.D.2d 758 (1978)

In the Matter of The Estate of Leo K. McManus, Deceased. Joseph M. McManus, Sr., Appellant; Virginia A. McManus, as Executrix of Leo K. McManusk, Deceased, Respondent In the Matter of The Estate of Mary F. McManus, Deceased. Joseph M. McManus, Sr. et al., Appellants; Leo K. McManus, as Executor of Mary F. McManus, Deceased, Respondent

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

June 26, 1978

Attorney(s) appearing for the Case

Foley, Hickey, Gilbert & Power (Terrence P. O'Reilly of counsel), for appellants.

Keenan, Powers & Andrews (Edward S. Andrews of counsel; Authur J. Powers on the brief), for respondents.

LATHAM and SHAPIRO, JJ., concur with HOPKINS, J. P; MARTUSCELLO, J., dissents and votes to affirm the decree on the opinion of Surrogate BLOOM.

HOPKINS, J. P.

In 1935 John J. McManus died, leaving a will whose provisions create the controversy presented by this appeal. At the time of his death the decedent owned the 10 outstanding shares of John J. McManus & Sons, Inc. (McManus & Sons), which owned and operated an undertaker's and funeral business. He named Mary V. McManus, his wife, as the executrix and trustee under the will. He bequeathed...

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