Urchs' Estate, In re

• Decision Date: 05 March 1963
• Citation: 240 N.Y.S.2d 467,39 Misc.2d 186
• Parties: In re ESTATE of Emma URCHS. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 467

240 N.Y.S.2d 467

39 Misc.2d 186

In re ESTATE of Emma URCHS.

Surrogate's Court, New York County.

March 5, 1963.

Maass, Davidson, Levy, Friedman & Weston, New York City (David J. Levy, Monroe L. Friedman, Joseph Spanier, New York City, of counsel), for respondents Tess L. Segel, as executrix of the will of Otonita Urchs Pope, Ann Pope, and William Henry Pope, and others.

Davis, Polk, Wardwell, Sunderland & Kiendl, New York City (Peter C. McBean, Gerald A. Fix, New York City, of counsel), for respondents Julia A. Wink as an executrix of the will of Beatrice Levy and Ella G. Waddock as an administratrix d. b. n., c. t. a. of the estate of Gertrude L. Berlaw and as an executrix of the will of Beatrice Levy.

Kelley, Drye, Newhall, Maginnes & Warren, New York City, for respondent The Society of the New York Hospital. (Edward K. Bachman, Leonard A. Blue, Donald F. Stubbs, New York City, of counsel).

Graeff & Schlesinger, New York City, for petitioner.

Thacher, Proffitt, Prizer, Crawley & Wood, New York City, for respondent Society for the Prevention of Cruelty to Animals.

JOSEPH A. COX, Surrogate.

In Matter of Krooss (302 N.Y. 424, 99 N.E.2d 222) the testator bequeathed a remainder to his children with a proviso that, should either of said children die prior to the death of the life tenant 'leaving descendants', and descendants should take the share of their parent. In that decision it was held that the testator had conferred a gift upon each remainder legatee which would be divested only upon two conditions, the first, that the named remainderman die during the trust term and, the second, that there be descendants of the named remainderman to receive the gift. The language of the opinion in the Krooss case could have been interpreted as limiting that decision to a will containing either identical language or equivalent language and, if this interpretation had been accepted, the decision would be controlling only in wills which, in making a substitutionary gift of a remainder interest, referred to the death of a named remainderman 'leaving descendants', 'survived by issue', 'with issue then living' or where the substitutionary gift was expressed in other particular text which would indicate that it was conditioned upon the actual existence of substitutionary donees. The Krooss decision has been so applied in comparable fact situations (e. g. Matter of Larkin's Will, 9 N.Y.2d 88, 211 N.Y.S.2d 175, 172 N.E.2d 555) and the concept of early vesting has been extended to different fact situations upon the authority of Krooss (Matter of Campbell's Will, 307 N.Y. 29, 119 N.E.2d 577; Matter of Ablett's Will, 3 N.Y.2d 261, 165 N.Y.S.2d 63, 144 N.E.2d 46). The Krooss decision also has been held applicable to a remainder gift to a named individual and a substitutionary gift to issue if the remainderman failed to survive the termination of the trust (Matter of Gardner's Estate, 12 A.D.2d 477, 207 N.Y.S.2d 651). In the Gardner case the remainder disposition was to named children and, if any of such persons failed to survive the trust term, to their living issue. It was held that the will effected a present gift to the named children to be divested as to any one of them by his failure to survive the duration of the trust if, but only if, such remainderman should leave issue or descendants surviving. The last cited opinion would appear to be a holding that a present gift to a named remainderman is to be defeated by a substitutionary gift to issue only when and if such issue exists. While the language of the Krooss will may be construed as expressive of an intent to condition the gift upon the existence of issue, a similar thought was not obvious in the Gardner will.

A recent decision of the Appellate Division (Matter of Storm's Will, 18 A.D.2d 656, 235 N.Y.S.2d 293) appears to clarify the thinking on this problem by limiting the Krooss decision to a will in which the testamentary language makes it plain that the substitutionary gift was intended by the testator to be operative only if the substituted legatees were in existence at the end of the trust term. Following this, it cannot be said that such a testamentary intent is clear in the will presently before the court and, for such reason, the motion for reargument is granted and, upon reargument, it is held that the legacies to the nieces of the testatrix lapsed by reason of their failure to survive the trust term. The further fact that the primary legatees did not leave issue to take as substitutionary legatees makes it necessary to determine whether these legacies are to be distributed as intestate property or as part of the residuary bequest to the Lying-In Hospital.

The testatrix directed the payment of three legacies, including those to her nieces, out of one-half of the trust remainder and then stated 'and the balance of said one-half share shall be paid by my said executor and trustee to Lying-In Hospital of the City of New York.' The intestate distributees urge this court to adopt the rule enunciated in Wright v. Wright, 225 N.Y. 329, 340, 122 N.E. 213, 216-217, which is that the residuum cannot be augmented by a 'residue of a residue'. The charitable legatee contends that this rule is not applicable to the case at bar because the will evidences an...