
    In the Matter of the Estate of Helen Becker, Deceased.
    Surrogate’s Court, Westchester County,
    January 15, 1962.
    
      Greene é Greene for petitioners.
   Harry G. Herman, S.

The court is asked to construe decedent’s will, more particularly paragraph “ third ” thereof, to determine the disposition of certain bequests contained therein for the benefit of a niece and nephew who predeceased the decedent. The pertinent portions of paragraph “ third ” are hereinafter quoted: ‘ ‘ All the rest, residue and remainder of my estate, real, personal and mixed, I direct my executors to convert into cash, and to distribute the same as follows: * * # To Emily Bathgate Bartlett, now residing at No. 136 East 64th Street, New York City, New York, the sum of Five thousand Dollars ($5,000). To C. Bathgate Becker, now residing at Stamford Delaware County, New York, the sum of Five thousand dollars ($5,000).”

Section 29 of the Decedent Estate Law is inapplicable for the two legatees who predeceased do not fall within a category protected by said statute.

While courts seek to avoid an intestacy, this is not possible when the legacies that lapsed form a part of the residuary estate. The court determines that intestacy results with respect to the two lapsed legacies; therefore, they shall be distributed accordingly. (Matter of Bogardus, 5 Misc 2d 607.)  