In re the Estate of Becker

32 Misc. 2d 653, 223 N.Y.S.2d 892, 1962 N.Y. Misc. LEXIS 4027

Opinion

Harry G. Herman, S.

The court is asked to construe decedent’s will, more particularly paragraph “ third ” thereof, to determine the disposition of certain bequests contained therein for the benefit of a niece and nephew who predeceased the decedent. The pertinent portions of paragraph “ third ” are hereinafter quoted: ‘ ‘ All the rest, residue and remainder of my estate, real, personal and mixed, I direct my executors to convert into cash, and to distribute the same as follows: * * # To Emily Bathgate Bartlett, now residing at No. 136 East 64th Street, New York City, New York, the sum of Five thousand Dollars ($5,000). To C. Bathgate Becker, now residing at Stamford Delaware County, New York, the sum of Five thousand dollars ($5,000).”

Section 29 of the Decedent Estate Law is inapplicable for the two legatees who predeceased do not fall within a category protected by said statute.

While courts seek to avoid an intestacy, this is not possible when the legacies that lapsed form a part of the residuary estate. The court determines that intestacy results with respect to the two lapsed legacies; therefore, they shall be distributed accordingly. (Matter of Bogardus, 5 Misc 2d 607.)