
    In the Matter of the Construction of the Will of Mary Duberstein, Deceased.
    Surrogate’s Court, Kings County,
    July 17, 1959.
    
      Raphael Persky for petitioner.
    
      Halperin, Natanson, Shurtz, Scholer & Steingut for respondents.
   Maximilian Moss, S.

This is a petition by a grandchild of the testatrix, seeking a determination as to the validity and effect of article “ V ” of the will and her right to take a share “ per stirpes ” thereunder.

The testatrix died on November 27, 1957, leaving a will dated July 2, 1952, which was granted probate on January 17, 1958. The petitioner’s waiver and consent to the probate of the will is filed herein.

The testatrix was the mother of eight children, three of whom predeceased her prior to the will’s execution. The petitioner is the issue of one of the testatrix’ three predeceased children. By the provisions of said article, a construction of which is sought, the testatrix’ residuary estate is devised and bequeathed equally ‘ ‘ to whomever of my children Bertha Levy, Deborah Williams, Celia Shorin, Gerald J. Dubey and Julius Duberstein, shall survive me ’ ’. This disposition of the residuary thereafter provides a substitutionary disposition to the issue of any of them who did not survive. Each of the residuary legatees named in the said article survived the testatrix and is now living.

The clause makes equal gifts to named persons and is not a class gift (Matter of Soy, 143 Misc. 217; Matter of Koorbusch, 199 Misc. 861). The beneficiaries of the residuary estate are limited to those persons named therein, each of whom survived the testatrix, and the provisions of section 29 of the Decedent Estate Law are inapplicable thereto (Pimel v. Betjemann, 183 N. Y. 194; Matter of Neydorff, 193 App. Div. 531; Matter of Northrip, 258 App. Div. 71). The court has considered the will in its entirety and can find no evidence of intention other than as so clearly expressed (Matter of Fabbri, 2 N Y 2d 236; Spencer v. Childs, 1 N Y 2d 103). In the light of the instrument as a whole the said article “ V ” is construed as devising and bequeathing the entire residuary estate equally to the five legatees named therein, and that the petitioner acquired no interest in the residuary estate.

Settle decree on notice construing said article accordingly.  