In re the Accounting of the Farmers' Loan & Trust Co.

Headnote

Will — construction — distribution of residuary estate.

Matter of Kelsey, 200 App. Div. 908 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 24, 1922, which affirmed a decree of the New York County Surrogate’s Court construing the will of Helen E. Kelsey, deceased. Testatrix by her will gave all her residuary estate to her executors in trust “ to apply the net income arising from all the rest of said residue and the remainder of said proceeds to the use of my said son Oscar during his natural fife, and. the principal thereof to be divided among his children at and upon his decease, should he leave children surviving him, but in case of his death without leaving surviving him any children, such last mentioned principal shall be divided equally among my other children, Charles, Anna and Helen, if then living, and if any of them shall then be dead, the children of such deceased child shall together take the share to which their parent would have been entitled if living.” The testatrix was survived by her four children, Oscar, Charles, Anna and Helen. Charles predeceased Oscar, the life beneficiary of said trust, leaving no issue him surviving. Subsequently to the death of Charles, Oscar died leaving no issue him surviving. Anna and Helen, daughters of said testatrix, survived Oscar. Anna died on July 30, 1918, and her sister Helen on April 6, 1893. The appellant is the executrix and sole legatee •under the will of Charles Kelsey, Jr., the son of the testatrix, who predeceased Oscar without issue.

The surrogate held that upon the death of Oscar the

estate of testatrix passed one-half to Anna and one-half to Helen and that the appellant herein took no interest in said property.