
    Matter of the Judicial Settlement of the Account of Charles L. Woolley, as Administrator with the Will Annexed of Henry C. Woolley, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      June, 1902.)
    Legacy—A Gennebal Residuary Clause Controls a Lapsed Legacy.
    Under a will giving all a testator’s residuary estate to Ms executors and directing them to sell it and dispose of it to certain person* and also containing a final clause directing the executors to divide all the rest, residue and remainder of said proceeds equally among the children of Ms brother Oliver when they reached majority, legacies to another brother and two sisters of the testator, which lapsed because they died: before he did, do not go to the next of kin, but to the children of Oliver as the provision in their favor is to be deemed a general residuary clause.
    Proceedings upon the judicial settlement of the account of an executor. •
    George W. Weiffenbach, for administrator; Qiuntin & Foulk, for next of kin.
   Fitzgerald, S.

The will submitted for construction contains the following clause: “ Seventh. All the rest, residue and remainder of my estate, real and personal, or of whatever the same may consist or wheresoever the same may he situate, which at the time of my death I may have held or be entitled to, I give, devise and bequeath to my executors hereinafter named, to have and to hold the same in trust for the uses and purposes following: To sell and dispose of the same and apply the proceeds as follows: First. To pay the one-fifth part thereof to my sister, Sarah Ann Jarvis. Second. To pay the one-fifth part thereof to my sister, Eliza J ane Reed. Third. To pay the one-fifth part thereof to my sister, Mary A. Simmons. Fourth. To pay the one-fifth part thereof to my brother, Oliver J. Woolley. Fifth. To pay the one-tenth part thereof to my friend, Caroline iS. Dean. Sixth. To pay Mary Black, wife of John H. Black, the sum of $200. Seventh. To pay George H. Black, son of said John H. Black, the sum of $200. Eighth. To pay Mary A. Black, daughter of said John H. Black, the sum of $200. Ninth. To pay Henry C. W. Black, a son of said John H. Black, when he arrives at full age, the sum of $200. Tenth. To divide all the rest, residue and remainder of said proceeds among the children of my brother, Oliver J. Woolley, share and share alike, when they respectively arrive at the age of 21 years.” Sarah Ann Jarvis, Mary A. Simmons and Oliver J. Woolley died during the lifetime of the testator, but he made no change in the provisions of his will on that account. The legacies to these three beneficiaries have lapsed, and the question submitted is whether the next of kin of the deceased will take these lapsed legacies as in the case of intestacy, or whether the children of Oliver J. Woolley, named in the tenth subdivision, will receive the same under the. said tenth subdivision. The last-named clause is in terms a general residuary clause and disposes of the residue of the residuary estate, and, therefore, the lapsed legacies of the three beneficiaries are to be disposed of by this clause. Morton v. Woodbury, 153 N. Y. 243, 254. The decree noticed for settlement will provide for distribution in accordance with this memorandum.

Decreed accordingly.  