3 Misc. 2d 634 | N.Y. Sur. Ct. | 1956
In this construction proceeding the court is asked to determine whether distribution of a trust remainder should be made per stirpes or per capita. Testatrix died in 1928. Paragraph Eighth of her will created a trust for the benefit of her daughter for life, and upon her death ‘ ‘ to pay over the net principal thereof to the issue of my said daughter, Carolyn Frances McCoon, in equal shares, absolutely and forever.” The life beneficiary died in 1955, survived by a daughter and the latter’s infant children. Two of these grandchildren were then in being and the third, en ventre sa mere, was subsequently born alive.
Section 47-a of the Decedent Estate Law governs this case. It became effective on April 30,1921 and provides: “ If a person dying after this section takes effect shall devise or bequeath any present or future interest in real or personal property to the ‘ issue ’ of himself or another, such issue shall, if in equal degree • of consanguinity to their common ancestor, take per capita, but if in unequal degree, per stirpes, unless a contrary intent is expressed in the will.” Unless a contrary intent can be found in the words “ in equal shares” the issue here, a child and grandchildren, in unequal degree of consanguinity to the life beneficiary, must take per stirpes. The quoted phrase does not express a contrary intent (Matter of Dahlman, 196 Misc. 260). A gift in similar terms was held to require a stirpital distribution even under the rule which antedated this statute (Matter of Lawrence, 238 N. Y. 116) wherein intent to divide per capita was presumed, absent some indication of a different
Submit decree on notice.