Opinion
September 29, 1965
In a proceeding to construe the will of Sarah Punch, deceased, the petitioner Jack Punch, individually, appeals from so much of a decree of the Surrogate's Court, Rockland County, entered March 3, 1965 after trial, upon the court's decision, as construed Paragraph "Twenty-fourth" of the will to mean that the residuary estate of the decedent "is to be divided among the [decedent's] three surviving siblings equally". Decree modified on the facts by amending its third decretal paragraph so as to provide that the residuary, including that portion bequeathed to Minnie Kaufman, is to be divided among the issue of the decedent's other three named beneficiaries, per stirpes. As so modified, decree, insofar as appealed from, affirmed, 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 clear intent of the testatrix was that any lapsed legacy contained in the residuary estate be divided among the surviving beneficiaries of the residue. (See Matter of Dammann, 12 N.Y.2d 500; Matter of Urchs, 20 A.D.2d 291. ) It appears that all four of the named residuary legatees predeceased testatrix; and that all (except Minnie Kaufman) left issue surviving the decedent. Accordingly, modification of the decree is required in order to state correctly the facts as they existed at the time of the testatrix' death. Christ, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.