In re the Estate of Spross , 20 A.D.2d 568 ( 1963 )

In a proceeding by the executors of Charles Gilbert Spross, deceased, for the judicial settlement of their final account and for the judicial construction of the twelfth paragraph of the testator’s will to determine whether four children of the testator’s predeceased nephew and nieces are entitled to share in the residuary estate, the petitioners, individually as residuary legatees and also as executors, appeal from a decree of the Surrogate’s Court, Dutchess County, entered February 1, 1963 upon the court’s opinion, which construed the will to mean that said four children “receive the share of the residuary estate which their respective parents would have received had such parents survived the Testator.” Decree affirmed, with costs payable out of the estate to all parties filing briefs. The twelfth paragraph of the will gave the residuary estate to the testator’s “ nephews and nieces in equal shares or if any shall have predeceased me, to his or her respective descendants per stirpes.” This provision, read in the context of the will, supports the determination made by the learned Surrogate (of. Matter of Crawford, 113 N. Y. 366; Lightfoot v. Kane, 170 App. Div. 412). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur. [37 Misc 2d 581.]