Spencer v. Childs

No opinion. Concur — Breitel, J. P., Bastow, Botein and Rabin, JJ.; Cox, J., dissents and votes to reverse and dismiss the complaint in the following memorandum: This court heretofore upheld the sufficiency of the complaint (283 App. Div. 788). On the trial of the action, plaintiff failed to sustain the burden cast upon her by the law. There is a complete failure of proof to establish that the testatrix intended that the words in paragraph 3d of the testatrix’ will should constitute a mandatory direction to her children to make the payments therein set forth. The judgment should be reversed and the complaint dismissed.