IN RE: the ESTATE OF Josephine F. EDWARDS

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Surrogate's Court, Nassau County, New York.

IN RE: the ESTATE OF Josephine F. EDWARDS, Deceased.

Decided: June 29, 2006

Brosnan & Hegler, LLP, Garden City, Attorney for Petitioner.

This petition for construction of a Will also requires the construction of two statutes, EPTL 3-3.3 and EPTL 3-3.4.

The decedent, Josephine Edwards, died on June 26, 2005 leaving a Last Will and Testament which was duly admitted to probate by a decree of this court.

The Will provides in part:

“ARTICLE SECOND:  I hereby give, devise and bequeath all the rest, residue and remainder of my estate, real, personal or mixed, wheresoever situated, whereof I may be seized or possessed or to which I may be in any manner entitled or in which I may be interested at the time of my death as follows:

A. a twenty-five (25%) percent share to my brother, ROBERT EDWARDS, per capita, absolutely and forever;

B. a twenty-five (25%) percent share to my brother, JOHN EDWARDS, per capita, absolutely and forever;

C. a twenty-five (25%) percent share to my niece, ANN KAUFMAN, per capita, absolutely and forever;

D. a twenty-five (25%) percent share to my nieces and nephews, ROBERT M. EDWARDS, SUZANNE INGRASIA, PATRICIA PURRMAN, FRED KOESTLICH, PAMELA HEIDTMANN and JOHN V. EDWARDS, share and share alike, per capita, absolutely and forever.”

Robert Edwards and Ann Kaufman predeceased the testator.   There are several issues of construction raised in this petition.

 The first issue of construction concerns the operation of the anti-lapse statute (EPTL 3-3.3) in connection with the words “per capita” in the bequest to Robert Edwards.   If the words “per capita” are considered to be an “otherwise provision” (EPTL 3-3.3[a][2] ), the anti-lapse statute does not apply and Robert M. Edwards does not succeed to his father's share of the residuary estate under the statute.   If the words “per capita” have no effect, Robert M. Edwards succeeds to his father's share of the residuary estate.

 A distribution “per capita” is an equal division among beneficiaries (EPTL 1-2.11).   When used in connection with the words “issue” or “descendents,” the term per capita may describe a substitutional gift.   Standing alone, “per capita” does not indicate a substitutional gift (Matter of Schwartz, N.Y.L.J., July 19, 1993, at 27, col. 4).

 In the context of a gift to one person, without substitution, the words “per capita” are not descriptive.   Words employed by a testator should not be rejected as meaningless if by any reasonable construction they may be made consistent and significant (Matter of Fabbri, 2 N.Y.2d 236, 159 N.Y.S.2d 184, 140 N.E.2d 269 [1957] ).   In this case, however, it appears that the words “per capita” were added inadvertently and should be disregarded (Matter of Squire, 102 N.Y.S.2d 735 [1951] ).

 The words “absolutely and forever” are not words of substitution and do not prevent application of the anti-lapse statute (see Matter of Lauricella, N.Y.L.J., Jan. 30, 1998, at 34, col. 3).

Therefore, the bequest to Robert M. Edwards vests in Robert M. Edwards.

 The second issue for construction is the division of the bequest to Ann Kaufman in the residuary estate.   Ann Kaufman died without issue.   The question is whether Ann's share is to be divided (1) among John Edwards and the beneficiaries named in Paragraph “D” (including Robert M. Edwards) or (2) among John Edwards, the beneficiaries named in Paragraph “D” (including Robert M. Edwards) and Robert M. Edwards as a “substitute taker” under paragraph “A.”

On this question, there are no reported cases on the interrelation of the relevant statutes.   Pursuant to EPTL 3-3.3, where a bequest is made to the issue or siblings of a testator and the beneficiary predeceases the testator, the gift does not lapse but vests in the beneficiary's surviving issue.   The purpose of the original anti-lapse statute was to abrogate the common law rule that a devise or bequest to a predeceased child lapsed and to substitute the children of the deceased child for the primary object of the testator's bounty (Matter of Murphy, 6 N.Y.3d 36, 809 N.Y.S.2d 500, 843 N.E.2d 140 [2005] ).   The statute is intended to compensate for the testator's presumed inadvertence in failing to provide a gift over to the lineal descendants of the deceased beneficiary (Barnes v. Huson, 60 Barb. 598 [1871] ) and to prevent the bequest from devolving to beneficiaries of the residuary estate whose relationship to the decedent might be remote (Tuttle v. Tuttle, 2 Dem.Surr. 48 [1879] ).

The purpose of EPTL 3-3.4 is to abolish the “no reside of a residue” rule.   The statute prevents an ineffective residuary bequest or devise from falling into intestacy (Second Report, Temporary State Comm. on Estates, pp. 436-453) and provides that the ineffective bequest passes to the “remaining residuary beneficiaries.”

 EPTL 3-3.3 is a remedial statute (Cook v. Munn, 2 Dem.Surr. 49 [1883];  Barnes v. Huson, 60 Barb. 598 [1871] [construing Sec. 52 of the Statute of Wills] ).   Remedial statutes are construed liberally to carry out the reforms intended (Legra v. Division of Housing and Community Renewal, 194 A.D.2d 677, 599 N.Y.S.2d 102 [1993] ).   The role of the courts is to give effect not only to the remedy but to words which delimit the remedy (Enright by Enright v. Eli Lilly & Co., 77 N.Y.2d 377, 568 N.Y.S.2d 550, 570 N.E.2d 198 [1991] ).  EPTL 3-3.3 substitutes the descendant of a beneficiary for the beneficiary but does not preclude the substitute taker from sharing in a lapsed residuary bequest to which EPTL 3-3.4 applies.

 EPTL 3-3.4 is also a remedial statute.   The purpose of EPTL 3-3.4 is to prevent an ineffective residuary bequest or devise from falling into intestacy.   That purpose is not frustrated by permitting a “substitute-taker” to share in the lapsed legacy of a second residuary beneficiary.

 In the absence of an irreconcilable conflict between statutory provisions, they must be read together, since the legislature is presumed to create laws in harmony with those in existence at the time of the new enactment (New York Public Interest Research Group v. Town of North Hempstead, 153 A.D.2d 743, 545 N.Y.S.2d 308 [1989] ).   Where statutes are potentially in conflict, they should be construed in such a manner that the dominant purpose of both can be preserved (Lumpkin v. Department of Social Servs. Of State of New York, 59 A.D.2d 485, 400 N.Y.S.2d 220 [1977] aff'd 45 N.Y.2d 351, 408 N.Y.S.2d 421, 380 N.E.2d 249 [1978] ).   The court finds that the dominant purpose of both statutes will be best preserved by a determination that the substitute taker of a residuary bequest to which EPTL 3-3.3 applies shares in a lapsed residuary bequest to which EPTL 3-3.4 applies.

Accordingly, the court finds that Robert M. Edwards shares in the lapsed bequest to Ann Kaufman in his own right under paragraph “D” and as a substitute taker under paragraph “A.”

Submit decree.

JOHN B. RIORDAN, J.