Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Matter of Richard P. Girard, as Executor of the ESTATE OF Masha TUMARKIN, Deceased, for Advice and Direction and for a Construction of Decedent's Last Will and Testament. Richard P. GIRARD, Petitioner-Respondent, v. Matthew GOLOGOR, et al., Respondents-Appellants.

Decided: January 23, 1997

Before MURPHY, P.J., and ROSENBERGER, ELLERIN and WALLACH, JJ. Douglas S. Trokie, for Petitioner-Respondent. Leigh R. Isaacs, for Respondents-Appellants.

Order, Surrogate's Court, New York County (Renee Roth, S.), entered February 2, 1996, which, inter alia, construed a will clause leaving to petitioner all property he “held jointly” with the decedent to include not just the properties held by the two as joint tenants but “all property of which they were co-owners, irrespective of the form in which title to the properties was held”, unanimously affirmed, without costs.

The clause in question would be superfluous if construed to include only jointly held property since such property would, in any event, pass to the surviving tenant by operation of law (see, 24 N.Y. Jur. 2d, Cotenancy and Partition, § 22).   Accordingly, absent evidence of a different intent, we construe the clause, as did the Surrogate, to include all property co-owned by the decedent and petitioner.