In re First National Bank — 252 A.D. 805

Majority

p. 805

In the Matter of the Petition of First National Bank of Binghamton, as Administrator with the Will Annexed of Frederic W. Jenkins, and as Trustee Thereunder, for the Construction of the Will of Frederic W. Jenkins, Deceased. Dorothy Crouch Harris, Individually and as Administratrix, etc., of Mary R. Jenkins, and Others, Appellants; First National Bank of Binghamton, as Administrator with the Will Annexed of Frederic W. Jenkins, and as Trustee Thereunder, Respondent.

Testator and his wife Mary R. Jenkins were killed in a common disaster when the automobile in which they were riding was struck by a railroad train. It has been found that decedent and his wife died simultaneously and thus that the wife did not survive decedent, her husband. This appeal is concerned with the question whether a legacy in decedent’s will lapsed. The legacy is as follows: “ I give and bequeath to my dear "wife, Mary R. Jenkins, to her and her heirs forever, the sum of fifteen thousand dollars ($15,000).” The appellants are nephews and nieces of the wife. They contend that the words “ to her and her heirs forever ” are words of substitution and that the legacy did not lapse but passed to them. The children of decedent by his former wife and the respondent, the administrator with the "will annexed, contend that the last quoted portion of the legacy are words of limitation and not of substitution and, therefore, that the legacy to the wife lapsed. The surrogate has decided the matter in consonance with the contention last stated. His decision should be affirmed. Decree

p. 806

unanimously affirmed, with costs to all parties filing briefs, payable out of the estate. Present — Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ. [161 Mise. 359.]