
    In the Matter of the Estate of Frances M. Nelson, Deceased.
    Surrogate’s Court, Nassau County,
    January 6, 1988
    APPEARANCES OF COUNSEL
    
      Walter, Conston, Alexander & Green for respondent. Alvan S. Hutchinson, Jr., for petitioner.
   OPINION OF THE COURT

C. Raymond Radigan, J.

In this construction proceeding the court determined in a prior decision (134 Misc 2d 936) that the devise to the decedent’s husband of her dwelling house in paragraph three of the will constituted a devise on condition. The devise is made "upon condition that should my husband, James A. Nelson, sell and/or transfer title to the said dwelling house during his lifetime, that the sum of one-third of the appraised value thereof be paid by him at closing of title to my estate and become a part of my residuary estate, otherwise this devise herein provided to him should fail and fall into and become a part of my residuary estate”.

The prior decision left open the question of what point in time the words "appraised value” have reference to. It is the petitioning husband’s position that they refer to the date of death value of the realty whereas the residuary beneficiary, a sister of the decedent, argues that the appraised value at the time of sale or transfer controls.

The court is in agreement with the sister’s contention that the words "appraised value” have reference to the appraised value at the time of sale or transfer. The sister’s share upon a sale or transfer is fixed at one third of the appraised value. Where a devise or bequest is phrased in terms of a fraction or percentage as here, the bequest or devise shares in any incremental value realized during administration (Matter of McKee, 132 Misc 2d 562; Matter of Guterman, 125 Misc 2d 59).

Moreover, since the one-third appraised value was used in the context of an amount to be paid at the time of "closing of title”, it is apparent that the testatrix had in mind a value arrived at at that time. Analogous is the well-established rule in the administration of estates that assets are to be valued as of the time of distribution and not as the date of death (Matter of Maglin, 85 Misc 2d 225, affd 51 AD2d 550).

Accordingly, the term "appraised value” is construed to refer to the value of the decedent’s dwelling house at the time of sale or transfer by the petitioner.  