In re the Accounting of Murphy

Headnote

Matter of Murphy, 165 App. Div. 783 , affirmed.

Appeal from, an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 29, 1915, which reversed a decree of the Kings County Surrogate’s Court settling the accounts of the executor of John W. Trim, deceased. The question ' at issue involved the construction of the following two provisions of the will: “ Sixteenth. Should any of the gifts and bequests made by me in this my will lapse or fail for any reason, I direct that the gift or bequest so lapsing or failing shall go to form part of my' residuary estate and be disposed of under and in accordance with the seventeenth paragraph of this .my will. Seventeenth. All the rest, residue and remainder of my property and estate, as well real and personal and wheresoever situate which at the time of my death shall belong to me or be subject to my disposal by will, I give, devise and bequeath unto Charles Ritchie hereinbefore named, absolutely and in fee to his heirs, executors and administrators and assigns, according to •the nature of the property.” The Appellate Division held - that the devise and legacy given by the Seventeenth paragraph of the decedent’s will did not lapse on the death of Charles Ritchie, but under its provision Charles Ritchie’s heirs take the real property, and his next of kin the net personal estate of the deceased.