On 31 December 1915, a testator died. On 31 March 1916, his will dated 20 October 1915 was admitted to probate. The Kings County Trust Company was granted letters testamentary on 31 March 1916 and letters of trusteeship on 24 October 1934. Under the will, the testator gave his residuary estate to his executor, in trust, to pay the net income arising therefrom to his wife, for and during her life. On 11 March 1959, the testator’s wife died. The will provides that upon the wife’s death, the said trust is to terminate, and the corpus thereof is to go and that the testator gives, devises and bequeaths the same, in equal shares, among his then surviving nephews and nieces, and the issue of any deceased nephew or niece (except issue of one niece), such issue taking in equal shares the share their parent would have taken if living. According to the will, it is the testator’s intention not to make the issue of the lone niece beneficiaries under his will.
Thereafter, the trustee brought the instant proceeding for the judicial settlement of its account. The trustee has requested in its petition that the Court find and determine that, in accordance with the intent of said decedent, as set forth in the will, the net distributable principal of the trust, now terminated, is primarily divisible into four equal major shares, one each for the lawful issue living at such termination and who represent decedent’s deceased nephews and nieces, the issue of each said deceased nephew and niece, respectively, to receive, in equal sub-shares, per stirpes, the equal major share which the deceased nephew or niece whom they represent would have taken, if living; and direct distribution accordingly.
Decedent had four nephews and four nieces. A New York Probate Lawyer said all of them died before the termination of the trust. Two nephews and two nieces died without issue.
Are the children of the deceased nephews and nieces entitled to the estate of the deceased?
Since the testator died prior to the enactment of section 47-a of the Decedent Estate Law, which became effective on 30 April 1921, the common-law rule respecting the interpretation and meaning of the word “issue” is applicable to the will. Manhattan Probate Lawyers said that while that rule, presumed in the absence of any other expression of testamentary intent, includes descendants in every degree, the courts are inclined to hold that the presumption would yield to a very faint glimpse of a different intention.
In the case at bar, the gift of the remainder upon the termination of the trust is in equal shares among testator’s then surviving nephews and nieces, and the issue of any deceased nephew or niece, such issue taking in equal shares the share their parent would have taken if living. The language used by the testator imports a gift by representation through a parent and consequently a per stirpes distribution. Thus, Nassau County Probate Lawyers said the court finds that distribution should be made of a one-fourth major share divided, in equal parts, among the six children of deceased nephew-one; a one-fourth major share should be divided, in equal parts, between the two children of deceased nephew-two; a one-fourth major share should be divided, in equal parts, among the two children and a grandson of deceased niece-one, and the remaining one-fourth major share should be divided among the issue of deceased niece-two, viz: one part to her son and one part divided equally among the children of her deceased son. In the absence of objections, there should be paid from the respective remainder interests of two of the heirs in the amounts assigned by them to a corporation.
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