In re the Estate of Smith

New York Surrogate's Court

In re the Estate of Smith

121 Misc. 662

DecidedNovember 15, 1923

StatusPublished

This text of 121 Misc. 662 (In re the Estate of Smith) 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.

Bluebook

In re the Estate of Smith, 121 Misc. 662 (N.Y. Super. Ct. 1923).

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Opinion

O’Brien, S.

This application to construe certain parts of the will is made in an accounting proceeding. After providing for a number of bequests the testatrix in paragraph “ eighteenth ” says in part “ the rest, residue and remainder of my property, of every description, I give, devise and bequeath as follows, viz: * * * To my brother-in-law, Thomas F. Smith, one-sixteenth thereof.” In paragraph “ twenty-first ” the testatrix further provides: “In the event of the death of Thomas F. Smith before me, I give, devise and bequeath the share of my estate given and bequeathed to him in section ‘ Eighteenth ’ of this instrument to his surviving children.”

• The contingency anticipated by the testatrix occurred. Thomas F. Smith, mentioned in paragraph “ eighteenth,” predeceased the testatrix, leaving him surviving seven children. One of these children, Annie B. Dexheimer, died after the father and before the [663]*663testatrix, leaving her surviving an infant daughter, Mary M. Dexheimer, who is still living.

The question arises whether the said infant is to participate in the distribution of the share of her grandfather, Thomas F. Smith, under the provisions of paragraph “ twenty-first.” The substitutional gift in said paragraph was to a body of persons uncertain in number at the time of the gift and to be ascertained at some future time (Matter of King, 200 N. Y. 189), and accordingly was a gift to a class (Matter of Pulis, 220 N. Y. 196, 204; Matter of Mc Kim, 115 Misc. Rep. 720; Matter of Baer, 147 N. Y. 348; Matter of Seebeck, 63 Hun, 179, and cases cited; Magaw v. Field, 48 N. Y. 668), and the children of Thomas F. Smith who survived both him and the testatrix are the only ones to take. The point raised by the special guardian for the infant Mary M. Dexheimer that the term “ children ” includes grandchildren is not well taken. There is nothing in the will to indicate an intention on the part of the testatrix to so use said term, and it must be taken in its primary sense. Hunt v. Wickham, 197 App. Div. 800; Matter of Phipard, 182 id. 357; affd., 223 N. Y. 676; Matter of Montgomery, 177 App. Div. 799; Matter of Pulis, supra; Matter of McKim, supra. Accordingly I hold that the said infant Mary M. Dexheimer is not entitled to participate in the distribution.

Proceed with the account accordingly.

Decreed accordingly.

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O’Brien, S.

This application to construe certain parts of the will is made in an accounting proceeding. After providing for a number of bequests the testatrix in paragraph “ eighteenth ” says in part “ the rest, residue and remainder of my property, of every description, I give, devise and bequeath as follows, viz: * * * To my brother-in-law, Thomas F. Smith, one-sixteenth thereof.” In paragraph “ twenty-first ” the testatrix further provides: “In the event of the death of Thomas F. Smith before me, I give, devise and bequeath the share of my estate given and bequeathed to him in section ‘ Eighteenth ’ of this instrument to his surviving children.”

• The contingency anticipated by the testatrix occurred. Thomas F. Smith, mentioned in paragraph “ eighteenth,” predeceased the testatrix, leaving him surviving seven children. One of these children, Annie B. Dexheimer, died after the father and before the [663]*663testatrix, leaving her surviving an infant daughter, Mary M. Dexheimer, who is still living.

The question arises whether the said infant is to participate in the distribution of the share of her grandfather, Thomas F. Smith, under the provisions of paragraph “ twenty-first.” The substitutional gift in said paragraph was to a body of persons uncertain in number at the time of the gift and to be ascertained at some future time (Matter of King, 200 N. Y. 189), and accordingly was a gift to a class (Matter of Pulis, 220 N. Y. 196, 204; Matter of Mc Kim, 115 Misc. Rep. 720; Matter of Baer, 147 N. Y. 348; Matter of Seebeck, 63 Hun, 179, and cases cited; Magaw v. Field, 48 N. Y. 668), and the children of Thomas F. Smith who survived both him and the testatrix are the only ones to take. The point raised by the special guardian for the infant Mary M. Dexheimer that the term “ children ” includes grandchildren is not well taken. There is nothing in the will to indicate an intention on the part of the testatrix to so use said term, and it must be taken in its primary sense. Hunt v. Wickham, 197 App. Div. 800; Matter of Phipard, 182 id. 357; affd., 223 N. Y. 676; Matter of Montgomery, 177 App. Div. 799; Matter of Pulis, supra; Matter of McKim, supra. Accordingly I hold that the said infant Mary M. Dexheimer is not entitled to participate in the distribution.

Proceed with the account accordingly.

Decreed accordingly.

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