112 Misc. 300 | N.Y. Sur. Ct. | 1920
In this accounting by the executors a question of construction of the will is presented. The will divides the residue of the estate into seven equal
Article VII provides that if any child “ shall die before me and shall leave lawful issue me surviving such issue shall upon my death take and receive ’ ’ the share of the deceased child per stirpes.
Two infant children of George survived the testatrix. Their special guardian claims that the death of the son Walter, intestate and without issue, in the lifetime of the testatrix, caused his share of the residuary to lapse into intestacy, and that the two infants are entitled to a portion thereof as next of kin of the testatrix.
Although the will provided for several contingencies, there is no express disposition of the share of any life beneficiary who would die without issue prior to the death of the testatrix. The executors concede that no provision is made for such a case and state that they believe the lapsed fund should pass under the residuary clause and increase the trusts for the other five children created by article IV. Under the authorities this cannot be done where there is a lapse of a part of a residue given in specific portions or shares. This principle is clearly elucidated in Morton v. Woodbury, 153 N. Y. 256, as follows: “ Where there is. a disposition of a part of the residue, and it fails, it will not go in augmentation of the remaining parts as a residue of a residue, but will devolve as undisposed of. ‘ Residue means all of which no effectual disposition is made by the will, other than (by) the residuary clause. In the instance of a residue given in moieties, to hold that one moiety lapsing shall accrue to the other, would be to hold that a gift of a moiety shall eventually carry the whole ’ (1 Jarman on Wills, 764, and cases cited).” See also Matter of Child, 99 Misc. Rep. 463; Downing v. Marshall, 23 N. Y. 366.
Both the executors and the special guardian concede
In view of the foregoing, intestacy as to the share of John Walter Watts must be found. This construction permits the children of the son George to share contrary to the expressed desire of the testatrix. The error or omission, however, was the testatrix’s. An heir or next of kin is not cut off by an expression to that effect in a will where there is no legal devise or bequest of a part of the estate to which the heir or next of kin would otherwise be entitled. Gallagher v. Crooks, 132 N. Y. 338; Wood v. Hubbard, 29 App. Div. 166.
Moreover, the failure to provide for George’s children was not a disinheritance for hostility to them.
The construction of the codicil is that Ethel C. Watts is deprived of the power of appointment and life interest as to one share of the residuary in the event of her marriage. In such a case one of her two shares reverts to the residuary to be divided into equal parts among the residuary trusts, including her own. It is not necessary to determine what disposition should be made of any part of the share in the event of the death of any of the five life beneficiaries who survived the testatrix and are now living. That question may be determined when the occasion arises. The will and codicil are construed accordingly.
Decreed accordingly.