5 Misc. 2d 378 | N.Y. Sur. Ct. | 1956
The trust originally consisted of a parcel of real property and $20,000 in cash. The testator directed that on the death of the life beneficiary without lawful issue surviving her, the fiduciary is 11 to divide, pay over and convey the said Trust property unto my then right heirs.” (Italics added.)
The term “ right heirs ” was used in creating estates tail, and with the abolition of such estates, it has fallen into disuse. As used in this will, it means the same as if the single term “ heirs ” had been used. (Brown v. Wadsworth, 168 N. Y. 225, 237.) The court holds that (1) it was the intent of the testator that the persons who are to take the remainder are those who would be his heirs if he had died on August 21, 1955, the date of death of the life beneficiary; (2) the statute of distribution is to be taken as the standard of division, fixing not only the persons who are to take, but the value of their shares as well (N. Y. Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93, 108); (3) in respect of these remaindermen, there is no substantial difference between the statute in effect at the testator’s death and the present statute, and hence no decision is required as to the particular statute applicable.
The case cited by the special guardian in support of a per capita division among all the descendants of whatever degree (Bisson v. West Shore R. R. Co., 143 N. Y. 125) is not applicable. There the gift was to my “heirs * * * share and share alike ” and the qualifying terms were held to manifest the intent for per capita distribution. (P. 129; see, also, N. Y. Life Ins. & Trust Co. v. Winthrop, supra, p. 106.) The will now before the court lacks any such qualification of the general rule enunciated by Judge Cabdozo in the case last cited.
There being no objection to the abandonment of the deficiency judgment against Pearl Ackerman, the petitioner will be discharged of all liability in respect of such judgment.
Submit decree on notice construing the will accordingly.