Surrogate Nora Anderson
In a contested proceeding, executor sought a determination regarding a disposition of a portion of the estate's residuary under decedent's will. Testator was survived by a niece and nephew, the children of his predeceased sister, Frances. The estate's residuary gave 47 percent to Frances "if she shall survive me," and two percent each to the niece and nephew. The court noted the will did not contain an express provision for an alternative disposition in the event a residuary bequest was ineffective. Executor sought to resolve a dispute of whether the provisions of Estates Powers and Trusts Law §3-3.3 prevented the residuary bequest to Frances from lapsing by preserving it for her descendants. The court noted evidence indicated decedent attached a survivorship condition to the subject bequest to Frances, and as such condition was not satisfied, the bequest to Frances lapsed. It found the niece and nephew's arguments, including that the survivorship condition was superfluous language, unavailing noting the language unequivocally showed testator knew how to protect a bequest from lapsing in the event a beneficiary failed to survive him. Thus, the subject bequest of 47 percent lapsed and was subject to the default provisions of §3-3.4.
