section 47 enactment in New York

1961The common-law definition of issue favored distribution per capita but it has been recognized repeatedly that the common-law rule of construction yields to a faint glimpse of a contrary intent (2 Jarman, Wills [1st Am. ed. 1845] 111; Ferrer v. Pyne, 81 N. Y. 281, 284 ; Matter of Farmers Loan & Trust Co., 213 N. Y. 168, 173-174 ; Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354 ).

1959However, equally well defined in the decisions is the rule that this presumption will yield to “ ‘ a very faint glimpse of a different intention.’” (Ferrer v. Pyne, 81 N. Y. 281, 284 ; Vincent v. Newhouse, 83 N. Y. 505 ; Matter of Farmer’s Loan & Trust Co., supra; Matter of Good, 96 N. Y.

1947The surviving spouse in the instant case urges that the enactment of section 47-c of Decedent Estate Law bars the application of the rule set forth in Matter of Waring (supra) and Matter of Battell (supra).

1940Referring to Matter of Waring (supra), the note of the Commission above referred to, and the enactment of section 47-c accordingly, the court said (p. 465): “ We, thus, have a clear indication of legislative intent that the surviving spouse is to be deemed an heir at law and next of kin, at least from the effective date of section 47-c of the Decedent Estate Law.

1961The common-law definition of issue favored distribution per capita but it has been recognized repeatedly that the common-law rule of construction yields to a faint glimpse of a contrary intent (2 Jarman, Wills [1st Am. ed. 1845] 111; Ferrer v. Pyne, 81 N. Y. 281, 284 ; Matter of Farmers Loan & Trust Co., 213 N. Y. 168, 173-174 ; Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354 ).

1932Prior to the enactment of section 47-a of the Decedent Estate Law (Laws of 1921, chap. 379), which took effect on April 30, 1921, it was the law that a gift to issue was presumed to be one to all descendants indiscriminately {Soper v. Brown, 136 N. Y. 244, 248 ), although it was frequently held that this presumption yielded to “ a very faint glimpse of a different intention.” {Ferrer v. Pyne, 81 N. Y. 281, 284 ; Matter of Farmers’ L. & T.

1959As the testator herein died in 1893 long before the enactment of section 47-a of the Decedent Estate Law, it is urged by the special guardians that the common-law doctrine favors the presumption of an equal per capita distribution among all the descendants of Mary Helen Gilpin in whatever degree of consanguinity (Soper v. Brown, 136 N. Y. 244 ; Petry v. Petry, 186 App. Div. 738 , affd. 227 N. Y. 621 ).

1957J., June 21, 1957, p. 7, col. 2.) If this decedent died prior to the enactment of section 47-a when the common-law rule of per capita distribution was in effect, unless the will expressed a contrary intention (Soper v. Brown, 136 N. Y. 244 ; Petry v. Petry, 186 App. Div. 738 , affd. 227 N. Y. 621 ) the use of the words “ per stirpes ” in subdivision (a) would have provided the faint glimpse necessary to take the distribution out of the general rule if subdivision (b) was being construed.

1965(Matter of Cole, supra.) Until the enactment of section 47-b of the Decedent Estate Law, such a direction conferred upon the beneficiary the right to elect to take its commuted value.

1947(Matter of Cole, 219 N. Y. 435, 438 ; and see Matter of Fischer, 261 App. Div. 252 ; Matter of Bertuch, 225 App. Div. *206 773; Matter of Oakley, 142 Misc. 1, 2-5 ; Matter of Foster, 174 Misc. 933, 936 .) Although the law governing purchased annuities has no application in the circumstances with which the present proceeding deals, it should be noted that the Legislature, by the enactment of section 47-b of the Decedent Estate Law, has changed the common-law rule respecting purchased annuities by providing that the annuitant may not elect to take the capital sum which the will directs shall be

1961The common-law definition of issue favored distribution per capita but it has been recognized repeatedly that the common-law rule of construction yields to a faint glimpse of a contrary intent (2 Jarman, Wills [1st Am. ed. 1845] 111; Ferrer v. Pyne, 81 N. Y. 281, 284 ; Matter of Farmers Loan & Trust Co., 213 N. Y. 168, 173-174 ; Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354 ).

1958That doctrine was that the word issue, standing alone without other expression of intent, was to be regarded as signifying descendants of every degree (Soper v. Brown, 136 N. Y. 244 ; Petry v. Petry, 186 App. Div. 738 , affd. 227 N. Y. 621 ) but equally well defined in the decisions has been the rule that such interpretation of the word should yield to a very faint glimpse of a different intention. (2 Jarman on Wills [1st Amer. ed. 1845] 111; Ferrer v. Pyne, 81 N. Y. 281, 284 ; Matter of Farmers’ Loan S Trust Co., 213 N. Y. 168, 173-174 .) The instant will is quite comparable to the instrument

1959As the testator herein died in 1893 long before the enactment of section 47-a of the Decedent Estate Law, it is urged by the special guardians that the common-law doctrine favors the presumption of an equal per capita distribution among all the descendants of Mary Helen Gilpin in whatever degree of consanguinity (Soper v. Brown, 136 N. Y. 244 ; Petry v. Petry, 186 App. Div. 738 , affd. 227 N. Y. 621 ).

1957J., June 21, 1957, p. 7, col. 2.) If this decedent died prior to the enactment of section 47-a when the common-law rule of per capita distribution was in effect, unless the will expressed a contrary intention (Soper v. Brown, 136 N. Y. 244 ; Petry v. Petry, 186 App. Div. 738 , affd. 227 N. Y. 621 ) the use of the words “ per stirpes ” in subdivision (a) would have provided the faint glimpse necessary to take the distribution out of the general rule if subdivision (b) was being construed.

1959As the testator herein died in 1893 long before the enactment of section 47-a of the Decedent Estate Law, it is urged by the special guardians that the common-law doctrine favors the presumption of an equal per capita distribution among all the descendants of Mary Helen Gilpin in whatever degree of consanguinity (Soper v. Brown, 136 N. Y. 244 ; Petry v. Petry, 186 App. Div. 738 , affd. 227 N. Y. 621 ).

1957J., June 21, 1957, p. 7, col. 2.) If this decedent died prior to the enactment of section 47-a when the common-law rule of per capita distribution was in effect, unless the will expressed a contrary intention (Soper v. Brown, 136 N. Y. 244 ; Petry v. Petry, 186 App. Div. 738 , affd. 227 N. Y. 621 ) the use of the words “ per stirpes ” in subdivision (a) would have provided the faint glimpse necessary to take the distribution out of the general rule if subdivision (b) was being construed.

1965(Matter of Maybaum, supra; Matter of Fischer, 261 App. Div. 252, 253-254 .) It is settled law that an annuity commences from the date of the testator’s death, unless the will otherwise provides.

1947(Matter of Cole, 219 N. Y. 435, 438 ; and see Matter of Fischer, 261 App. Div. 252 ; Matter of Bertuch, 225 App. Div. *206 773; Matter of Oakley, 142 Misc. 1, 2-5 ; Matter of Foster, 174 Misc. 933, 936 .) Although the law governing purchased annuities has no application in the circumstances with which the present proceeding deals, it should be noted that the Legislature, by the enactment of section 47-b of the Decedent Estate Law, has changed the common-law rule respecting purchased annuities by providing that the annuitant may not elect to take the capital sum which the will directs shall be

1965(Matter of Maybaum, supra; Matter of Fischer, 261 App. Div. 252, 253-254 .) It is settled law that an annuity commences from the date of the testator’s death, unless the will otherwise provides.

1963It provides that “If a person * * * shall devise or bequeath any present or future interest * * * to the ‘ issue ’ of himself or another, such issue pball, if in equal degree of consanguinity to their common ancestor take per capita, but if in unequal degree, per stirpes, unless a contrary intent is expressed in the will.” Although the will refers to the word “ descendant ” and the statute to the word “ issue,” the word “ descendant ” is coexistent and synonymous with the word “ issue.” (Matter of Schoellkopf, 21 Misc 2d 564, 565 .) It must be noted that, in the very paragraph under constructi

1961Alden, and to the survivors of them, ‘ ‘ the descendants of either deceased sister * * * living at the time of her death, to take the share their parent would have taken if living. ’ ’ The testator having died some 19 years prior to the enactment of section 47-a of the Decedent Estate Law, common law would ordinarily be applied and the word “ descendants ” construed as requiring a per capita distribution (Matter of Libby, 206 Misc. 723 ; Matter of Russell, 133 N. Y.

1959However, equally well defined in the decisions is the rule that this presumption will yield to “ ‘ a very faint glimpse of a different intention.’” (Ferrer v. Pyne, 81 N. Y. 281, 284 ; Vincent v. Newhouse, 83 N. Y. 505 ; Matter of Farmer’s Loan & Trust Co., supra; Matter of Good, 96 N. Y.

1957(Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168, 173-174 ; Matter of Good, 304 N. Y. 110 .) The special guardian’s contention that the inequality of benefits given to the issue of decedent’s brother and sister is an indication that he intended a per capita distribution to the sister’s issue was considered and rejected in Matter of Lanier (138 N. Y.

1953Prac. 208 ) and Matter of Cruger ( 36 Misc. 477 ), both of them decided long before the enactment of section 47 of the Decedent Estate Law, nor in the English cases of Thornton v. Curling (8 Sim. 310); Hog v. Lashley (6 Bro.

1952(See Matter of Burk, 190 Misc. 931 , affd. 298 N. Y. 450 , and mod. 299 N. Y. 308 .) But the Burh case may not be interpreted as reversing the stand of the Court of Appeals with respect to the status of widows as heirs of deceased life beneficiaries under wills of testators dying before the enactment of section 47-c of the Decedent Estate Law in 1938.

1952(See Matter of Burk, 190 Misc. 931 , affd. 298 N. Y. 450 , and mod. 299 N. Y. 308 .) But the Burh case may not be interpreted as reversing the stand of the Court of Appeals with respect to the status of widows as heirs of deceased life beneficiaries under wills of testators dying before the enactment of section 47-c of the Decedent Estate Law in 1938.

1952(See Matter of Burk, 190 Misc. 931 , affd. 298 N. Y. 450 , and mod. 299 N. Y. 308 .) But the Burh case may not be interpreted as reversing the stand of the Court of Appeals with respect to the status of widows as heirs of deceased life beneficiaries under wills of testators dying before the enactment of section 47-c of the Decedent Estate Law in 1938.

1951If the present case were carried to the Court of Appeals, could there be any reasonable doubt that it would be determined by that court that the rule of Smith v. Robertson (supra), in view of the present provision of section 47-e of the Decedent Estate Law taken in conjunction with section 83 of the Decedent Estate Law, had become outmoded and obsolete?

1951However, it seems there could be no doubt whatever but that the rule established in the case of Smith v. Robertson (supra), insofar as it might be applicable to the situation here presented, became obsolete upon the enactment of section 47-c of the Decedent Estate Law.

1949(Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354 ; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93 ; Matter of Durant, 231 N. Y. 41 ; Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168 ; Matter of Union Trust Co., 170 App. Div. 176 , affd. 219 N. Y. 537 .) In Matter of Lawrence ( 238 N. Y. 116 ) it was held that a direction for a distribution ‘ ‘ share and share alike ” might be satisfied by division equal as between stocks.

1949It cannot be said of these legacies that an interest in succession was given to the issue of any child for the words “ or their heirs, per stirpes ” are manifestly words of substitution (Matter of Evans, 234 N. Y. 42 ).

1949(Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354 ; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93 ; Matter of Durant, 231 N. Y. 41 ; Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168 ; Matter of Union Trust Co., 170 App. Div. 176 , affd. 219 N. Y. 537 .) In Matter of Lawrence ( 238 N. Y. 116 ) it was held that a direction for a distribution ‘ ‘ share and share alike ” might be satisfied by division equal as between stocks.

1949(Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354 ; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93 ; Matter of Durant, 231 N. Y. 41 ; Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168 ; Matter of Union Trust Co., 170 App. Div. 176 , affd. 219 N. Y. 537 .) In Matter of Lawrence ( 238 N. Y. 116 ) it was held that a direction for a distribution ‘ ‘ share and share alike ” might be satisfied by division equal as between stocks.

1949(Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354 ; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93 ; Matter of Durant, 231 N. Y. 41 ; Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168 ; Matter of Union Trust Co., 170 App. Div. 176 , affd. 219 N. Y. 537 .) In Matter of Lawrence ( 238 N. Y. 116 ) it was held that a direction for a distribution ‘ ‘ share and share alike ” might be satisfied by division equal as between stocks.

1949(Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354 ; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93 ; Matter of Durant, 231 N. Y. 41 ; Matter of Farmers’ Loan & Trust Co., 213 N. Y. 168 ; Matter of Union Trust Co., 170 App. Div. 176 , affd. 219 N. Y. 537 .) In Matter of Lawrence ( 238 N. Y. 116 ) it was held that a direction for a distribution ‘ ‘ share and share alike ” might be satisfied by division equal as between stocks.

1947(Matter of Cole, 219 N. Y. 435, 438 ; and see Matter of Fischer, 261 App. Div. 252 ; Matter of Bertuch, 225 App. Div. *206 773; Matter of Oakley, 142 Misc. 1, 2-5 ; Matter of Foster, 174 Misc. 933, 936 .) Although the law governing purchased annuities has no application in the circumstances with which the present proceeding deals, it should be noted that the Legislature, by the enactment of section 47-b of the Decedent Estate Law, has changed the common-law rule respecting purchased annuities by providing that the annuitant may not elect to take the capital sum which the will directs shall be

1947(Matter of Cole, 219 N. Y. 435, 438 ; and see Matter of Fischer, 261 App. Div. 252 ; Matter of Bertuch, 225 App. Div. *206 773; Matter of Oakley, 142 Misc. 1, 2-5 ; Matter of Foster, 174 Misc. 933, 936 .) Although the law governing purchased annuities has no application in the circumstances with which the present proceeding deals, it should be noted that the Legislature, by the enactment of section 47-b of the Decedent Estate Law, has changed the common-law rule respecting purchased annuities by providing that the annuitant may not elect to take the capital sum which the will directs shall be

1944Co., 182 Misc. 180 , affd. 268 App. Div. 768 .) Since the testator died before the effective date of the enactment of section 47-c of the Decedent Estate Law, its provisions have no application here.

1944Co., 182 Misc. 180 , affd. 268 App. Div. 768 .) Since the testator died before the effective date of the enactment of section 47-c of the Decedent Estate Law, its provisions have no application here.

1944(Matter of Lake, 170 Misc. 840 .) The Surrogate accordingly holds that Henry A. Leatt, the husband of Ethel Klopfer Leatt, is not entitled to share in any part of the remainder.