Opinion
August 1, 1961
Appeal from an order of Surrogate's Court, Fulton County. Decedent provided by his will for a $10,000 legacy for his sister Mary, who predeceased him; and the question in the case is whether the legacy has vested in her children (Decedent Estate Law, § 29) or lapsed. The Surrogate has decided there was a vesting and we think his decision was correct. The principal asset of the decedent was a garage business. The will provided if at the time of decedent's death he should still own the garage that his brother and nephew who were to have the garage should pay Mary "One thousand ($1,000.00) Dollars per year for a period of ten years, or a total of Ten Thousand ($10,000.00) Dollars, such conditional bequest[s] to be a lien upon said garage real estate, dischargeable only by * * * the payment of Ten Thousand ($10,000.00) Dollars in cash, less the total of the annual payments theretofore made to my sister Mary Farhart. In the event that I shall have disposed of said garage business prior to my death * * * or in the event that my brother and nephew should decide to sell said garage business, then and in that event I direct that the sum of Ten Thousand ($10,000.00) Dollars less the amount of the annual payments theretofore made, shall be given to my sister, Mary Farhart, to be hers absolutely and forever". Although the testator owned the garage business at the time of his death, it has since been sold. Nothing has been paid to Mary's children. Appellants argue that what she was to receive under the terms of the will was merely an annuity which lapsed on her death; but it seems to us reasonable to conclude, as the Surrogate did, that this was not an annuity. In the first place $10,000 was given to Mary unconditionally and in all events. If the garage business was continued, it was payable at an annual rate until the business was sold and the rest of it became payable. When the business was sold it was clear that Mary's right became absolute to the whole $10,000, giving credit for what she had received, i.e., "then and in that event I direct that the sum of Ten Thousand ($10,000.00) Dollars * * * shall be given to my sister, Mary Farhart, to be hers absolutely and forever". This is not an annuity; it is not contingent; it is an absolute gift to which Mary would be entitled had she lived. It is the kind of "estate" which, within the contemplation of section 29 of the Decedent Estate Law, passes on to her children. Decree affirmed, with costs payable from the estate to all parties filing a brief. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur; Coon, J., not voting. [ 25 Misc.2d 231.]