MATTER OF SMITH, 60 N.Y.2d 864 (1983)

458 N.E.2d 818, 470 N.Y.S.2d 359

In the Matter of the Estate of EARL W. SMITH, Deceased. ELIZABETH KLINDT et al., Appellants; MARGARET M. HEIT, Respondent.

Court of Appeals of the State of New York.Submitted October 21, 1983
Decided November 22, 1983

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, GEORGE S. KEPNER, JR., J.

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James E. Konstanty for appellants.

Edward Gozigian for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs to all parties appearing separately and filing

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briefs, payable out of the estate, for the reasons stated in the memorandum in that court (90 A.D.2d 905).

If the word “including” in the FOURTH paragraph of the will is read to mean “as well as” the pattern of decedent’s dispositive plan becomes evident and internally consistent. Subject to the gift of his residence to his wife to enjoy during her lifetime if she did not predecease him, he gave the residence to his friend Margaret Mary Heit. If his wife did predecease him, he gave what would have been her life interest in the residence, as well as the “fee” thereof, to Margaret Mary Heit.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.

Order affirmed in a memorandum, with costs payable out of the estate to all parties appearing separately and filing separate briefs.