In re the Estate of Mortimer

New York Surrogate's Court

In re the Estate of Mortimer

147 Misc. 543, 264 N.Y.S. 229, 1933 N.Y. Misc. LEXIS 1128

CourtNew York Surrogate's Court

DecidedApril 28, 1933

StatusPublished

Cited by1 cases

This text of 147 Misc. 543 (In re the Estate of Mortimer) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Estate of Mortimer, 147 Misc. 543, 264 N.Y.S. 229, 1933 N.Y. Misc. LEXIS 1128 (N.Y. Super. Ct. 1933).

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Opinion

Delehanty, S.

By the seventh paragraph of his will testator created a trust in one-half of his residuary estate for the benefit of his son and upon his son’s death directed a distribution of the principal “ to and among his lawful issue share and share alike.”. The life tenant has been survived by children now living who themselves have living children. The word “ issue ” in the quoted phrase was not intended by testator to authorize grandchildren and their children to share equally. His will is instinct with the contrary thought. It shows that equality of distribution was the dominant thing in his mind. While in the instant case each grandchild has only one child, the interpretation sought by the special guardian would be applicable if only one grandchild had issue or if there were disparity of number of great-grandchildren in the respective stocks. A per capita distribution in such circumstances would defeat the plan of equal treatment. That plan requires the exclusion of children whose parents are living. The infants here have no interest in the estate. (Matter of Durant, 231 N. Y. 41.)

Submit decree on notice construing the will accordingly.

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Delehanty, S.

By the seventh paragraph of his will testator created a trust in one-half of his residuary estate for the benefit of his son and upon his son’s death directed a distribution of the principal “ to and among his lawful issue share and share alike.”. The life tenant has been survived by children now living who themselves have living children. The word “ issue ” in the quoted phrase was not intended by testator to authorize grandchildren and their children to share equally. His will is instinct with the contrary thought. It shows that equality of distribution was the dominant thing in his mind. While in the instant case each grandchild has only one child, the interpretation sought by the special guardian would be applicable if only one grandchild had issue or if there were disparity of number of great-grandchildren in the respective stocks. A per capita distribution in such circumstances would defeat the plan of equal treatment. That plan requires the exclusion of children whose parents are living. The infants here have no interest in the estate. (Matter of Durant, 231 N. Y. 41.)

Submit decree on notice construing the will accordingly.

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147 Misc. 543, 264 N.Y.S. 229, 1933 N.Y. Misc. LEXIS 1128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-mortimer-nysurct-1933.

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