In re the Estate of Springer

15 Misc. 2d 636, 182 N.Y.S.2d 968, 1958 N.Y. Misc. LEXIS 2104

• Court: New York Surrogate's Court
• Decided: December 22, 1958
• Status: Published

Opinion

Joseph A. Cox, S.

In this proceeding to settle his account, the executor has requested this court to construe that portion of paragraph third of the decedent’s will which reads as follows:

“ I hereby give, devise and bequeath all the rest, residue and remainder of my estate, inclr ing but not limited to real property, personal property and mixed property wheresoever situated and which I shall die seized or possessed of and which I shall be entitled to at the time of my decease, to the following persons and in the following shares:

“ (a) Unto the eight children of my sister-in-law Selma Springer, now residing at 22A Pfeiffer Str. 74 Dusseldorf, Germany, eight-tenths share thereof to be divided equally, share and share alike, amongst the said eight children or the survivor of them.”

The gift by the testator to his sister-in-law’s eight children to be divided equally amongst the said eight children or the survivor of them falls clearly within the definition of a gift to a class. “ A gift to a class has been defined as ‘ a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number of persons. ’ (1 Jarman on Wills [6th ed.], *232.) This definition has been approved by this court in Matter of Kimberly (150 N. Y. 90) and in other later cases.” (Matter of King, 200 N. Y. 189, 193.)

In the case at bar, the testator in making the gift to his sister-in-law’s children was making a gift such as described in the definition described above; the members of the class entitled to take to be determined as of the date of the testator’s death (Matter of King, supra; Matter of Gaunt, 204 Misc. 622; Matter of Crane, 164 N. Y. 71).

The court holds, therefore, that eight tenths of the residuary estate of the testator be divided into seven equal parts and distributed to the seven surviving children of the testator’s sister-in-law.

The permission sought by the executor to pay over one of the shares due to a nephew of the deceased to the City Treasury is granted. The allowance to the attorney for the executor has been fixed.

Submit decree construing the will and settling the account accordingly.