The decedent died on December 31, 1915. His will, made on October 20, 1915, was admitted to probate on March 31, 1916. The Kings County Trust Company was granted letters testamentary on March 31, 1916 and letters of trusteeship on October 24, 1934.
By the ninth paragraph of the will 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. The wife died on March 11, 1959. The will provides that upon her death ‘said trust is to terminate, and the corpus thereof is to go, and I give, devise and bequeath the same, in equal shares, among my then surviving nephews and nieces, and the issue of any deceased nephew or niece (except issue of my niece), such issue taking in equal shares the share their parent would have taken if living. It being my intention not to make the issue of the niece beneficiaries under this my Will.’ The trustee brought this proceeding for the judicial settlement of its account and has requested in its petition ‘That the Court find and determine that, in accordance with the intent of said decedent, as set forth in Paragraph Ninth of his said Will, the net distributable principal of said now terminated trust 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, respectively, 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.
The decedent had four nephews and four nieces. All of them died before the termination of the trust. Two nephews and two nieces died without issue. A deceased nephew, was survived by five sons and a daughter. A deceased nephew, left a daughter and a son. Alice Ash, a deceased niece, was survived by two daughters and a grandson, the only child of her deceased son, a deceased niece, was survived by her son Edward V. Barton, and by three grandchildren.
Since the testator died prior to the enactment of section 47-a of the Decedent Estate Law, which became effective on April 30, 1921, the common-law rule respecting the interpretation and meaning of the word ‘issue’ is applicable to the will. While that rule, presumed in the absence of any other expression of testamentary intent, includes descendants in every degree, the courts were inclined to hold that the presumption would yield to a very faint glimpse of a different intention.
Here 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. Distribution should be made of a one-fourth major share divided, in equal parts, among the six children of a deceased nephew; a one-fourth major share should be divided, in equal parts, between the two children of a deceased nephew; a one-fourth major share should be divided, in equal parts, among the two children and a grandson of a deceased niece, and the remaining one-fourth major share should be divided among the issue of a deceased niece.
In the absence of objections there should be paid from the respective remainder interests of the amounts thereof assigned by them, respectively, to Prom Undies, Inc. Account settled. Submit decree on notice construing the will and settling the account accordingly.
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