Opinion
02-07-1955
In the Matter of the Accounting of Lillian R. Engel, as Administratrix C.T.A. of Anna M. Schaertl, Deceased.
Edwiene Schmitt for administratrix c.t.a., petitioner. Malcolm O. Herzog for Albert E. Meyer. Charles J. Donovan for Louisa A. Erts and others. MOSS, J. (Justice of Supreme Court as Acting Surrogate). In this accounting proceeding the administratrix c.t.a. seeks a construction of the will's residuary provision to determine whether the residuary estate passes as intestate property or is saved for the descendants of the brother named as a residuary legatee by section 29 of the Decedent Estate Law. Testatrix, a schoolteacher, died on April 8, 1952, a resident of Kings County leaving a will dated May 4, 1932, which was admitted to probate January 6, 1953. Letters of administration c.t.a. were issued to petitioner, a niece of testator, and a daughter of the residuary legatee. The instrument is in the handwriting of the testatrix on a printed "will" form and makes therein some forty-one different bequests. The paragraph concerning which construction is sought reads in part as follows:
"All the rest of my residue and remainder of my estate, * * * at the time of my decease I hereby give and devise and bequeath to my darling brother (half-brother) * * * to him and his heirs if he outlives me".The half brother of the testatrix mentioned in the will predeceased the testatrix. At his death he was a widower and was survived by a daughter and a granddaughter, issue of a predeceased daughter. Issue of a second predeceased half brother were two daughters, two sons and three grandchildren, issue of a deceased daughter. If there be a determination that decedent died testate, and that the bequest to the half brother named in the will did not lapse then the residuary would be distributed to his issue; otherwise on a finding of intestacy all of testator's distributees would be included. The problem presented requires consideration of the will provision in the light of the commonly called anti-lapse statute (Decedent Estate Law, § 29). Section 29 of the Decedent Estate Law is inapplicable to a will which contains evidence that the statute is not to be operative (Pimel v. Betjemann, 183 N.Y. 194; Matter of McKeon, 182 Misc. 906), or where the language of the testamentary instrument gives evidence of a contrary intent. The will gives evidence of such contrary intent by the express words of the testatrix "if he outlives me". The court holds, therefore, that section 29 of the Decedent Estate Law is not applicable; that the testatrix died intestate as to her residuary estate; and distribution of the said residuary is directed accordingly. Settle decree on notice.