In re Judicial Settlement of Account of Babylon National Bank & Trust Co.

242 A.D. 796

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1934
• Status: Published

Opinion

Decree of the Surrogate’s Court of Suffolk county modified by providing that the principal of the estate be divided in the following manner: One-half to Henry Poster; one-eighth each to Hattie Poster Kirby, Emily Kern, Sally Geier and Sadie Stainsby, and as thus modified the decree is unanimously affirmed, with costs, payable out of the estate, to appellant Henry Foster. The surrogate is directed to enter a decree accordingly. The cross-appeal of Hattie Foster Kirby is dismissed, without costs. When the testator provided in the sixth paragraph of his will that the remainder of his estate should be distributed among “ heirs ” of decedent’s sister and “ heirs ” of decedent’s uncle, the language did not indicate a purpose to exclude any one who answered to the description of an heir of either of the individuals named. The bequest is to two classes, that is, one-half to each class. (Bisson v. W. S. R. R. Co., 143 N. Y. 125, 129.) Henry Foster, therefore, as nearest heir of Mary Rhynus, deceased, is entitled to receive one-half as his share as such heir. If the testator had intended to exclude him, presumably he would have used apt limiting language to that end. The distribution to the two classes of heirs of the two individuals named is required to be made per stirpes to the heirs of Mary Rhynus and William Foster. Henry Foster should take the one-half share given to heirs of Mary Rhynus and the four grandchildren of Francis and Smith Foster should divide equally the one-half share given to “ heirs of William Poster; ” granchildren being the first class met in that line and the line being unbroken. (Matter of Samson, 257 N. Y. 358, 361.) Lazansky, P. J., Young, Carswell, Scudder and Tompkins, JJ., concur.