In re the Estate of Hanf , 99 A.D.2d 673 ( 1984 )

Decree reversed, with costs, and decree granted, in accordance with the following memorandum: In her will the decedent gave the residue of her estate to “my sisters, Barbara T. Mostyn and Elizabeth G. Hanf, in equal shares; or to the survivor of them if only one of them should survive me.” Both sisters named in the will predeceased the testatrix. Barbara Mostyn had one child, Betty Straton, now living. The testatrix had two other sisters who died before the execution of the will, one of whom had three children, now living. Construing the will, the Surrogate determined that the antilapse statute applied and that Betty Straton was the sole residuary legatee of the estate. We disagree. The antilapse statute (EPTL 3-3.3) provides that “(a) Unless the will provides otherwise: (1) Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, per stirpes.” As stated by Surrogate Foley in Matter ofLoeb (34 NYS2d 65, 67), “The provisions of the [antilapse statute] have been uniformly determined to create only an inference or presumption of intention on the part of a testator to benefit the descendant of a legatee who comes within the statutory class of relationship of a descendant or a sister or brother of the testator. It is inapplicable where the testamentary instrument gives evidence of a contrary intent [citing cases].” Contrary intent is indicated where the testator uses words of survival to condition the gift (Ann., 63 ALR2d 1172, 1176). Here, the testator used words of survival and, had one of the sisters outlived the decedent, that sister would take to the exclusion of any children of deceased sisters. This indicates the intention of the testatrix to benefit a living sister or sisters and not the children of her deceased sisters. Another indication of her intention to exclude children of deceased sisters is the fact that she made no provision for the children of the sister who had died before the execution of the will. “Nothing in the will or in the evidence justifies a conclusion that the testatfrix] intended to benefit [one niece] and to deny such benefits to [the other niece] and nephews” (Matter of Robinson, 37 Mise 2d 546,550; see, also, Matter ofAgrella, 175 Mise 456,457). The decree appealed from is reversed, therefore, and it is decreed that the ° antilapse statute (EPTL 3-3.3) does not apply to the residuary clause of the will and that the residuary legacies of the sisters, Barbara T. Mostyn and Elizabeth G. Hanf, have lapsed. All concur, except Callahan, J., who dissents and votes to affirm, in the following memorandum.