In re the Estate of De Leo

34 Misc. 2d 233, 226 N.Y.S.2d 449, 1962 N.Y. Misc. LEXIS 3586

Opinion

John D. Bennett, S.

In this accounting proceeding a construction is required of paragraph third of the will, which reads as follows:

“ third: All the rest, residue and remainder of my estate, both real, personal and mixed, and wherever the same may be situate, I give, devise and bequeath as follows :

“ (A.) One-half thereof to Ethel Powers, also known as Ethel De Leo, to be hers absolutely and forever.

“ (B.) The remaining one-half thereof, I give, devise and bequeath to my grandchildren and to the children of Ethel Powers, also known as Ethel De Leo, in equal shares to be theirs absolutely and forever.”

The actual issue presented by the language of the will is not a determination of the date at which the respective beneficiaries are to be ascertained, as submitted in the papers, but is rather whether the gift in subdivision (B.) of paragraph third is one to two different classes resulting in an equal division between the two (in such case the grandchildren would receive one fourth the residuary as a class and the two children of Ethel Powers De Leo, the other one fourth), or whether it is a gift to each individual beneficiary (the eight grandchildren of the testator and the two children of Ethel Powers De Leo) per capita.

Page, Wills (§ 1081, entitled “ Grift to two or more classes ”) states: “If testator gives property to the children of two or more persons who are not intermarried with each other, the general rule is that this calls for a distribution per capita, in the absence of distributive words, or other form of expression showing a different intent. ’ ’

To the above statement the same author adds on page 289 the following: ‘ ‘ Such words as 1 equally, ’ or ‘ share and share alike ’ strengthen the inference that a per capita distribution was intended.”

Paragraph third (B.) of the will is accordingly construed as a gift of one half the residuary to the eight grandchildren of the testator and the two children of Ethel Powers De Leo, per capita.

The fee of the attorney executor is fixed in the amount requested, and is for all services rendered, including the submission of a decree and implementation thereof.