In re the Judicial Settlement of the Account of Proceedings of Lawrence

The only provisions of the decree brought in question by the appeal are those relating to one one-eleventh interest in the residuary estate which the testatrix attempted to devise and bequeath to Abraham Lawrence and Espinosa, who predeceased the testatrix, -unmarried and without issue. The learned surrogate decided that as to this interest the testatrix died intestate. The appellants contend that it remained.part of the residuary estate and was added in equal proportions to the other. ten residuary interests. The testatrix,, after directing the payment of her debts- and funeral expenses and making certain bequests, by the 6th clause of her will provided as follows:

“ I give, devise and bequeath to my -executors hereinafter named all the rest, residue and remainder of my estate, both real and personal, of every kind and nature whatsoever and wherever situated, in trust nevertheless for the following uses ■ and purposes, to wit:

“1. To set apart a sufficient portion of my estate as will in *131their judgment produce an annual income of one thousand two hundred dollars, as a separate trust for the benefit of my sister Tomasa A. Espinosa, widow of James W. Lawrence, the said income to be paid her in monthly installments, during the term of her natural life, and upon her death I direct that the principal of said trust fund shall become part of my residuary estate.”

The only other provisions of the will essential to a decision of the clause under construction are the 7th and 8th paragraphs which are as follows:

“ Seventh. If at the time of my death any of the beneficiaries named in the foregoing Sixth paragraph shall have died, then I will and direct that the said eleven shares into which my estate is directed to he divided shall he reduced in number to the "number of said beneficiaries as shall have survived me, and to the extent of said deceased beneficiaries’ interest.

“ Eighth. Upon the death of any of the beneficiaries of the income of my said residuary estate, I direct that a share of the principal of said trust estate equal in proportion to the share which such beneficiary so dying has annually received from the income thereof shall be paid to Such person or persons to whom such beneficiary so dying shall have bequeathed the same by a last will and testament duly probated; and if such beneficiary so dying shall not have designated by will to whom he or she sba.ll desire the same to be paid, then' I will and direct that said share shall be paid to the heirs or next of kin of said deceased beneficiary.”

There is some ambiguity in the 7th paragraph of the will owing to the fact that after directing that in the event of any of the beneficiaries named in the 6th paragraph of the will predeceasing the testatrix she directed that the number of shares into which her estate should be divided should be reduced by the number of beneficiaries, so predeceasing her,-and then added the clause, ‘ ‘ and to the extent of said, deceased beneficiaries’ interest. ”

We are of opinion that the proper construction of this paragraph of the will, taken as a whole, is that the deceased intended that her entire residuary estate should be divided into as many shares as there were beneficiaries named in the 6tn paragraph of the will who survived her, instead of being divided into eleven shares, as. she directed in the event that they all *132survived, her; and it necessarily follows, if this be so, that the share which would have otherwise gone to the deceased beneficiary is added proportionately to the interest' of- the surviving beneficiaries. If she did not intend to dispose of any eleventh residuary interest in the event that the beneficiary predeceased her there would be no occasion for the direction for the reduction of the number of shares into which her residuary estate should be divided. The practical effect of the decree as made by the surrogate is to divide the resiiluary estáte hito eleven shares and to give- each beneficiary who survived the testatrix one-eleventh, and to give the next of kin and heirs of the testatrix the remaining one-eleventh as intestate property, upon the theory that the testatrix intended to. exclude it from the operation of her will. That theory involves two divisions of the residuary estate. It would have to be divided into eleven parts first, and then, after deducting such of those parts as were intended for beneficiaries who had died, the remainder would have to be divided into as many parts as there were surviving beneficiaries; but, as álready stated, the second division thus directed on that theory would be unnecessary, for the desired result would have been already accomplished by the original division into elevenths. Our construction is, we think, emphasized and enforced by the provisions of the 8th paragraph of the will, wherein she gives to each beneficiary a power of appointment with respect to the principal of the residuary estate on which such beneficiary has received the income, and in the event of the failure to exercise the same she gives such principal to the heirs and next of kin of such beneficiary; for this shows that she intended by her will to dispose of all of her property.

The decree of the surrogate in so far as appealed from should be reversed, therefore, with costs to the appellants payable out • of the estate, and the decree should be modified in accordance with the views herein expressed.

Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

Decree, so far as appealed from, reversed, with costs to appellants payable out of estate, arid decree ordered as directed in opinion. Order to be settled on notice