35 Misc. 2d 109 | N.Y. Sur. Ct. | 1962
The testatrix bequeathed general legacies to her four sisters, Mrs. Carlin, Mrs. Levoie, Mrs. Rodgers and Mrs. Wheeler. She provided that, in the event Mrs. Wheeler
The three first-mentioned sisters of the testatrix predeceased her and, by reason of such fact, this proceeding was instituted to obtain a construction of the will and a determination of the disposition to be made of the general legacies which the will provided for these predeceased sisters. The petitioners in this proceeding are children of Mrs. Carlin and it is their contention that the legacy bequeathed to their mother passes to them by operation of section 29 of the Decedent Estate Law. This statutory provision was enacted to avoid the lapse of bequests to certain near relatives of a testator and the purpose of the statute was to fulfill an unexpressed intention of the testator by providing a disposition of a legacy in circumstances where the testator’s failure to provide a disposition could be regarded as an oversight on his part (Matter of Conay, 121 N. Y. S. 2d 486, 488). The statute was not intended either to establish a public policy or to substitute a legislative intent for a testamentary intent and, accordingly, the statute is without application if it is evident from a will that the failure to provide for the passing of a legacy in conformity with the statute is not an oversight and the statutory disposition would not be in harmony with the testator’s testamentary purpose (Pimel v. Betjemann, 183 N. Y. 394: Matter of Neydorff, 193 App. Div. 531; Matter of StebbinsVallois. 99 N. Y. S. 2d 402; Matter of Cane, 196 Misc. 158; Matter of Koorbusch, 199 Misc. 861: Matter of Parker, 15 Misc 2d 162: Matter of Moore, 13 Misc 2d 640; Matter of Carleton, 3 Misc 2d 677: Matter of Loeb, 34 N. Y. S. 2d 65; 2 Davids, New York Law of Wills, § 683).
In this will it is apparent that the testatrix was fully aware of the possibility that her sisters could predecease her and also that certain of her sisters could leave descendants. The testatrix provided that the legacy to her sister Mrs. Wheeler would pass to the latter’s husband and children and, in view of this, it cannot be said that the failure of the testatrix to make like provision with regard to Mrs. Carlin was an oversight. The