Cite as: Estate of Margaret O'brien, 762P-1999/A/x-ref 281P-2002, NYLJ 1202638796220, at *1 (Surr., NY, Decided December 23, 2013)

762P-1999/A/x-ref 281P-2002

Surrogate Nelida Malave-Gonzalez

Decided: December 23, 2013




In this proceeding, the co-administrators c.t.a., a niece and a grandniece of the decedent, request that the court apply the anti-lapse statute (EPTL 3-3.3) to the residuary clause in Paragraph FOURTH of the decedent's will dated March 9, 1983, which was admitted to probate by decree entered on November 13, 2002. Jurisdiction was obtained over all interested parties, several of whom appeared and indicated that they were considering retaining an attorney and filling objections to the application; however, no opposition was filed.

The decedent died on January 20, 1998 at the age of 93. The decedent never married or had children. The decedent's only distributees are 13 nieces/nephews, a grand-nephew and three grand-nieces, all of whom are the children or grandchildren of three predeceased brothers and a predeceased sister, Della Curley.

Paragraphs SECOND and THIRD of the will contain de minimis bequests to two of the decedent's three predeceased brothers. Thereafter, Paragraph FOURTH of the will states:




"4. All the rest, residue and remainder of my property, both real and personal, of which I shall die seized or possessed, or to which I may be in any way entitled to at the time of my death, I give, devise and bequeath to my sister, DELLA CURLEY, residing at 1541 Metropolitan Avenue, Bronx, New York 10462 and my nephew, ALFRED T. CURLEY, residing at 1128 Second Street, Sacramento California, or the survivor, share and share alike."

Della Curley died in 1992 and her only child Alfred T. Curley (Alfred) died in 1994, both predeceasing the decedent; however, Alfred's three daughters, who are Della's grandchildren and the decedent's grand-nieces, survive. The will does not name alternate residuary beneficiaries. The petitioners urge that, pursuant to the anti-lapse statute (EPTL 3-3.3), the residuary estate should be paid to those three grand-nieces, Della's grandchildren.

Subdivision (a) (1) of EPTL 3-3.3, as in effect at the time of the decedent's death (the anti-lapse statute), applies to wills executed prior to September 1, 1992 and provides, in pertinent part, that:

"Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, per stirpes."

Pursuant to the statute, where a testator anticipates that a named beneficiary will survive her, absent any contrary intention if the named beneficiary does not survive, there is an inference that the testator intends to benefit the issue of the named beneficiary, who are to receive that




named beneficiary's legacy (see Matter of Bleakley, NYLJ, May 10, 1995, at 25, col 5 [Sur Ct, Westchester County 1995]). Nonetheless, the eligible beneficiary class contemplated by the anti-lapse statute is limited to the issue, brothers or sisters of a decedent (see EPTL 3-3.3 [a] [1]). In this estate as only Della, a sister, qualifies under the EPTL 3-3.3 anti-lapse provision, the bequest to her son Alfred, a nephew of the decedent, lapses (cf. Matter of Linderman, 13 Misc 3d 329 [Sur Ct, Bronx County 2006]). Pursuant to EPTL 3-3.4, Alfred's one-half share of the residuary reverts to Della and, pursuant to former EPTL 3-3.3, the entire residuary remains intact and vests per stirpes in Della's surviving issue, her grandchildren (see former EPTL 3-3.3 [a] [1] [in effect at the time of the decedent's death and amended effective September 27, 2013]); see also 2013 NY Senate-Assembly Bill 6555, L 2013, ch 348; Matter of Harms, 171 AD2d 868 [2nd Dept 1991]; Matter of Cathers, 99 Misc 2d 540 [Sur Ct, Onondaga County 1979]). The fact that Della predeceased Alfred does not alter the result; the order of their deaths is not relevant, only that they both predeceased the decedent after the will was executed (see Matter of Bleakley, NYLJ, May 10, 1995, at 25, col 5).

Accordingly, it is concluded that pursuant to EPTL 3-3.3 [a] [1] in effect at the time of the decedent's death and EPTL 3-3.4, the disposition of the residuary estate is to be made to Della's surviving issue per stirpes, the decedent's three grand-nieces, Diane M. Christensen, Janet Curley and Jean Curley.




This decision constitutes the order of the court.

The Chief Clerk is directed to mail a copy of this decision and order to counsel for the petitioners and all parties who appeared pro se in this proceeding.

Proceed accordingly.