Opinion
May 1, 1967
In a proceeding for the judicial settlement of the account of the respondent executor and for the construction of a will, the appeal is from so much of a decree of the Surrogate's Court, Kings County, dated July 13, 1966, as construes the will and determines the fee of the attorney for the executor. Decree modified, on the law and the facts, (1) by deleting the provisions thereof which (a) adjudge and decree that the five legatees who survived the testator Albert O. Sorensen are entitled to the residuum of the estate and (b) direct the division of the residue of the estate among them and (2) by substituting therefor (a) an adjudication that the legacies to the five legatees who predeceased the testator lapsed and (b) directions that their shares, in the absence of proof of the identity of the persons entitled to take as in intestacy, be deposited with the Comptroller of the State of New York for the benefit of the unknown distributees of the testator Albert O. Sorensen, and that the remaining one half of the estate be divided equally among the five residuary legatees who survived the testator Albert O. Sorensen. As so modified, decree affirmed insofar as appealed from, with costs to all parties filing separate briefs, payable out of the estate. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. The will under scrutiny was a joint will executed by Albert O. Sorensen and his wife, Helen Frances Sorensen, in 1947. It made no provision for the distribution of their property to the survivor, or otherwise, upon the death of the one first to die, but directed only that their funeral expenses and just debts be paid and that the residue be divided between nine named legatees, who were nephews, nieces and a sister of the testatrix Helen Sorensen, and a tenth named legatee, who was a friend, but not a relative of either decedent, "to receive share and share alike absolutely and in fee, without any reservations or restrictions whatever." It further provided that, in the event of the death of the legatee who was referred to as a friend, "his claim should be voided." At the time of the execution of the will, one of the legatees had died; and two more died during the lifetime of the testatrix Helen Sorensen. On her death, since she left no estate, the will was not offered for probate; and two more of the residuary legatees died during the lifetime of the testator Albert Sorensen, leaving five named legatees surviving him who were nephews, nieces and a sister of the testatrix Helen Sorensen. The testator Albert Sorensen had a brother, who has not been located, and it is not known whether he is alive or dead and, if dead, whether he left any children surviving. The learned Surrogate held, on consideration of the fact that the will was the product of a layman, and of the surrounding circumstances and the language used by the testators, that it was evident that they intended to make a present gift of the residuum, which spoke as of the time of the death of the testator; and that the five named legatees who survived him were entitled to the entire residuary estate, which the Surrogate directed to be divided equally among them. We are unable to agree with the learned Surrogate's construction of the will. No provision is made in the will for the distribution of the share of any of the residuary legatees in the event of death during the lifetime of the testators; nor do we find anything in the context to indicate an intent that any legacy should not lapse in such event, or any express or implied provision for the disposition of any residue of the residuary estate, in such event. At common law, the death of a legatee or devisee prior to the death of a testator caused the bequest or devise to lapse. That rule is still the law in this State, except as modified by section 29 of the Decedent Estate Law ( Matter of Ungara, 183 Misc. 907; Matter of Wells, 113 N.Y. 396, 399, 400). It is also well established that, in the absence of express or implied provision for the disposition of the residue of a residue, the court may not create one ( Matter of Urchs, 20 A.D.2d 291 [McNally and Witmer, JJ., dissenting], mod. in accordance with dissenting opinion 15 N.Y.2d 893; Wright v. Wright, 225 N.Y. 329, 339-341). We find no reason to disturb the determination by the Surrogate with respect to the fee of the attorney for the executor. Christ, Acting P.J., Brennan, Hopkins, Munder and Nolan, JJ., concur.