New York Court of Appeals, 1979

In re the Estate of Sparacio

New York Court of Appeals · Decided May 3, 1979

47 N.Y.2d 771; 391 N.E.2d 296; 417 N.Y.S.2d 461; 1979 N.Y. LEXIS 2040

Cases that cite this one

2 later published cases cite this decision.

Mercury Bay Boating Club Inc. v. San Diego Yacht Club (Appellate Division of the Supreme Court of New York 1989)
In re the Estate of Samuelson (Appellate Division of the Supreme Court of New York 1985)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

We agree that the testamentary disposition in this instance was precatory rather than mandatory. The testator, knowledgeable in matters of legal drafting, chose to employ the classic words of precatory import — "wish and desire”. Additionally, the substantive disposition is internally incongruous with a testamentary mandate; the ultimate distribution was not to daughter and friend "in equal shares” but "as in their mutual agreement they decide” — an apportionment impossible of judicial implementation.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed, etc.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.