Opinion
September 17, 1957
Frank McCabe, Jr., for petitioner.
Doles Walker for St. Philip's Church.
A question of construction has been raised in this executor's accounting. Under paragraph "Seventh" of her will, decedent divided her residuary estate into 13 equal parts. She bequeathed 2 of the said parts to her executor and an equal amount to 2 other persons and the remaining 7 parts she gave to 7 named legatees. This paragraph also provided that if any of these named residuary legatees predeceased the testatrix, then the share of such predeceased legatee was to be divided equally among the surviving legatees. All of the residuary legatees survived the testatrix.
By codicil the decedent reduced the executor's legacy of 2 parts to one part and made no provision of the undisposed part.
The problem requiring construction concerns the disposition of the one thirteenth of the residuary. The petitioner contends that it was the intention of the testatrix that her entire residuary estate be divided into equal parts and as a result, distribution of the residuary should be in twelfths instead of thirteenths.
The lapse or failure of a gift of a specific share of the residuary estate does not augment a share passing to other residuary legatees unless the entire residue is given to a class ( Matter of Cokefair, 173 Misc. 196). Stated another way, the rule applicable is that there can be no residue of a residue and the part which has failed or has been undisposed of passes as intestate property ( Wright v. Wright, 225 N.Y. 329).
The court, therefore, holds that testatrix died intestate as to one thirteenth of her estate.
Submit decree on notice construing the will and settling the account accordingly.