
    Matter of the Judicial Settlement of the Estate of Jane Hawley.
    
      (Surrogate’s Court, Rensselaer County,
    
    
      March, 1912.)
    Wills—Disposal by Will—Testamentary Capacity—Interpretation and Construction—Disposal op Lapsed or Void Devises or Bequests or op otherwise Undisposed Property—Lapsed Shares op Residue or Estates therein.
    The rule that where the shares of legatees named are fixed they take as tenants in common and not as a class does not apply where the will and surrounding circumstances show an intention inconsistent therewith.
    
      Where the parents of a testatrix were dead when she made her will and. of twelve deceased uncles and aunts on uncle and two aunts on her father’s side and one uncle on her mother’s side had living children, and, after the bequest of a bed to a nephew, she left one-fifth of her residuary estate to each of the four branches of the family in one of which there was a surviving cousin, in another two who predeceased testatrix, in another three and in another seven, and the remainder was given to the six children of two deceased cousins, in each instance the legatees being named and described as children of a certain person, it is clear that it was the intention of the testatrix to divide her residuary estate among classes of relatives and not to individuals, but, all the members of one class having predeceased her, that share lapsed .and passed to the next of kin of testatrix.
    See Note on Tesamentary Capacity , 1 Mills 161.
    Proceeding upon the judicial settlement of the accounts of an executor.
    W. A. Glenn, for executor.
    J. A. Cipperly, for William Hawley.
    W. W. Morrill, for Guardie G. Hawley and Ella H. Lewis.
    Michael D. Reilly, special guardian of incompetent person.
   Heaton, S.

Upon this judicial settlement the will of the deceased must be construed to determine whether or not she died intestate as to any of her property, and for that purpose other persons who might possibly be affected by the construction have been made parties, as well as the legatees.

Miss Hawley made her will in 1887, and at that time she "had one nephew, William Hawley, and fifteen first cousins, sisters and one brother of her mother, had living children. To each of these four branches of the family, she gave a one-fifth part of her estate. In one branch there was one surviving cousin, and she was given one-fifth; in another two surviving cousins were given the same; in another three and in another seven surviving cousins were given the same amount. The fifth share was given to the six children of two deceased cousins.

This method of distribution shows a clear intention of dividing the residuary estate among classes of relatives and not among individuals. Each class had the same amount, whether it was made up of one, two, three, six or seven individuals. It was not the individuals she had in mind so much as the fact that those certain individuals were the living representatives-of all her deceased uncles and aunts.

It was said in Ferrer v. Pyne, 81 N. Y. 281, that the rule of taking as tenants in common would yield to a very faint, glimpse of a different intention. The intention is plain that fhe nephew should receive only a bed, and not a bed and upward of $1,800. It is equally clear that the intention of the testatrix was that the one-fifth parts of her estate should go to those who constituted the classes she had selected to receive them, even though some of them died before her death, even as others had died before she made the will.

The scheme and plan of her will was to divide the estate into five parts, the number of classes, and not into nineteen parts, the number of individuals benefited. Let a decree be entered dividing one-fifth of the residue among the five surviving children of Walter and Wilson Hollister, equally; one-fifth to Lydia Hollister; one-fifth to the seven children of George Broclcaway; one-fifth to the two surviving children of Andrew Bedell, equally. Both of the legatees, children of Reuben Hawley, having died, that one-fifth share lapses and will be decreed to William Hawley, the only next of kin.

Decreed accordingly.  