186 Misc. 154 | N.Y. Sur. Ct. | 1945
A distributee of testatrix has instituted the within proceeding for construction pursuant to section 145 of the Surrogate’s Court Act to obtain a determination as to the effect of the provisions of clause “ First ” of the will, which reads as follows: “ First: After all my just debts and funeral expenses are paid, I give, devise and bequeath all my property, real and personal, to my husband, Francis J. Steinhauser. In the event of his death before me, I give, devise and bequeath all such property to his three children, to be divided equally among them, share and share alike.”
The husband of testatrix predeceased her, as did one of his three children. The testatrix was survived by three sisters and a brother as her sole distributees. The question is presented as to whether the gift is one to a class or whether the decedent died intestate as to the share of the child of decedent’s husband who predeceased testatrix.
The court determines that the gift to the three children to be divided equally among them does not constitute a gift to a class. A class gift has been described as a gift of property as an unapportioned whole accompanied by uncertainty as to the number of shares or the takers of shares. (Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86; Matter of Kimberly, 150 N. Y. 90.) The gift is not one to a class where the bequest is made to persons nominatim or so described as 'to be fixed by description at the time of the gift so that there can be no fluctuation, (Mat
Settle decree construing the will accordingly.