In re the Estate of Shannon , 486 N.Y.S.2d 502 ( 1985 )

Boomer, J.

(dissenting). I respectfully dissent and vote to affirm. In his will the testator first gave his wife’s diamond ring to his brother-in-law and then disposed of the residue of his estate as follows: “[T]o my brother-in-law, Floyd E. Wheeler, of Toledo, Ohio, and my brother, Eugene B. Shannon, of Duluth, Minnesota, share and share alike, that is, an undivided one-half (V2) to each, their heirs and assigns.” All of the persons named in the will predeceased the testator and there are no known distributees. Surviving are the wife and the child of testator’s brother-in-law, who claim the estate.

I agree with the Surrogate that the legacies to the testator’s brother and brother-in-law lapsed and no part of the estate passes to the heirs of the brother-in-law. The words “heirs and assigns” are words of limitation and not of substitution (see Matter of Thompson, 279 NY 131, mot for rearg den 279 NY 789; Matter of Vosseler, 220 NY 225; Matter of Wells, 113 NY 396; Matter of Jenkins, 161 Misc 359, affd 252 App Div 805). I do not find in the will any expression of a contrary intent (see Matter of Thompson, supra), even if we assume that the testator did not intend to die intestate (see Matter of Powers, 7 AD2d 1023, affd 8 NY2d 1102).

EPTL 303.4 does not, in this case, prevent the lapse of the residuary legacy, for the statute applies only where a disposition “is ineffective in part”; it has no application here where the disposition is totally ineffective. (Appeals from decree of Cattaraugus County Surrogate’s Court, Horey, S. — judicial settlement.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ. [119 Misc 2d 1033.]