In re the Accounting of Stamm , 31 Misc. 2d 857 ( 1961 )

Maximilian Moss, S.

Article “III” of the first codicil to testator’s will requires construction to determine the manner of distribution of three shares of the residuary estate.

Testator directed division of the estate into seven equal parts, one of which was given to Kate Schnell and another to Lucy Ulmer. Article ‘ ‘ III ’ ’ provided that in the event any named person predeceased testator “ the part to which that person would have been entitled had he or she survived me shall be distributed to the next-of-kin and/or the distributees of the said person in accordance with the intestate laws of the State of New York in effect at the time of my decease.” Testator died December 11, 1959.

Kate Schnell and Lucy Ulmer predeceased testator. Each was survived by a spouse who married thereafter and prior to the death of testator.

The shares to which Kate Schnell and Lucy Ulmer would have been entitled if they had survived testator must be distributed in accordance with the provisions of Article “III”. The court construes such article as expressing the intent and purpose of testator that the share of any legatee named therein, who predeceased him, should be distributed in accordance with section 83 of the Decedent Estate Law to the persons who would have been the distributees of such legatee had he or she survived testator and died immediately following’ his death. Under such construction the spouses of Kate Schnell and Lucy Ulmer, who survived them but since married again, would not be distributees. The bequest to Kate Schnell is to be distributed in equal shares to her issue, Mildred Wittmore and George Schnell, Jr., and the share bequeathed to Lucy Ulmer shall be paid to her distributees who survived testator in accordance with section 83 of the Decedent Estate Law, excluding therefrom her surviving spouse, i.e., l/4th thereof to Elsie McMaster, l/4th to Hattie Stratz, l/8th to Mildred Wittmore, l/8th to George Schnell, Jr., l/8th to John Weber and 1/8th to June Corbyons.

Testator gave a l/7th equal part to Herman Kultzow who also predeceased testator, survived by his wife and daughter. The share to which he would have been entitled had he survived testator is to be distributed in equal shares to Loretta Kultzow and Margaret Kultzow Beber.

The remaining equal parts were given to persons now living. Accordingly, the net estate is directed to be distributed as follows: l/14th to Loretta Kultzow, l/14th to Margaret Kultzow Beber, l/7th to Dora Aring, 5/28ths to Elsie McMaster, 5/28ths to Hattie Stratz, 5/56ths to Mildred Wittmore, 5/56ths to George Schnell, Jr., 5/56ths to John Weber and 5/56ths to June Corbyons. The will is so construed.