84 Misc. 2d 1087 | N.Y. Sur. Ct. | 1976
In this judicial settlement proceeding, the executor, John Leuer, Jr., has requested that the court construe and determine the validity, force and legal effect of paragraph "7” of the last will and testament of the above-named decedent, which paragraph provides as follows: "I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal, of whatsoever kind and nature and wheresoever situate, to my executors hereinafter names, and/or to their successors, and direct that they distribute the same equally among my sisters and brothers living at the time of my death, share and share alike.”
The decedent, Florence C. Leuer, died on October 7, 1973, leaving her surviving three nephews, two nieces and one grandniece. The will of the decedent was executed on April 24, 1970. The decedent during her lifetime was one of nine children. Two brothers and two sisters died during the lifetime of the decedent without issue. A brother, William Leuer, died on October 11, 1960 (prior to the date of the execution of the will), leaving him surviving a son, William Leuer, Jr. A sister of the decedent, Mary Leuer Rodler, died on December 19, 1963 (prior to the date of the execution of the will), leaving her surviving two children, Clarence Leuer Rodler and Mildred Rodler O’Mara. Mildred Rodler O’Mara died prior to the date of the execution of the will, leaving her surviving a daughter, Patricia O’Mara Heckiert. A brother of the decedent, John Leuer, died during the lifetime of the decedent, but subsequent to the date of the execution of the will, leaving him surviving two children, Mary Leuer (Sister Jeanne Marie) and John Leuer, Jr. Finally, Julia Leuer Happ, a sister , of the decedent, died during the lifetime of the decedent and subsequent to the date of the execution of the will, leaving her surviving a daughter, Eleanor Happ Cordovano. It appears, therefore, that the above-named surviving issue of the siblings of the decedent are the intestate distributees of the decedent.
The court is requested to consider the application of EPTL 3-3.3 (anti-lapse statute). It is suggested that the residuary estate does not lapse by reason of the prior death of the named legatees. It is further suggested that EPTL 3-3.3 (subd [a], par [2]) precludes the issue of William Leuer or Mary
In any event, paragraph "7” of the decedent’s will prohibits the application of EPTL 3-3.3. Decedent restricted the disposition of her residuary estate to brothers ánd sisters "living at the time of my death”. Obviously, therefore, decedent by simple, formal and unambiguous language, evidenced her intent that only the survivors of the class designated by her should share in her residuary estate. To apply the anti-lapse statute in this situation would in effect distort the plain meaning of the will by eliminating therefrom a survivorship clause expressly intended by the testatrix. It is not the function of this court to search for hidden meanings when the will on its face is clear and unambiguous. This will was drawn by
It is accordingly the decision of this court that the real and personal property of the above-named decedent passing under the residuary portion of her will, paragraph "7” thereof, be distributed as by intestacy, as follows: William Leuer, Jr., nephew, one sixth of the residuary estate; Mary Leuer (Sister Jeanne Marie), niece, one sixth of the residuary estate; John Leuer, Jr., nephew, one sixth of the residuary estate; Clarence Leuer Rodler, nephew, one sixth of the residuary estate; Patricia O’Mara Heckiert, grandniece, daughter of Mildred Rodler O’Mara, deceased, niece, one sixth of the residuary estate; and Eleanor Happ Cordovano, niece, one sixth of the residuary estate.