per capita rule in New York

1957The courts of this State have felt constrained by authority to recognize the common law rule, Central Hanover Bank & Trust Co. v. Pell, supra, 268 N. Y. at page 358 , 197 N. E. at page 311 , even though £ a definition according to our own laws of descent and distribution would have furnished the very avenue of escape that the English judges sought, but could not find in their law.’ Petry v. Petry, supra, 186 App. Div. at page 747 , 175 N. Y.

1949(Matter of Lawrence, supra; Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354, 360 ; Matter of Farmers Loan & Trust Co., 213 N, Y. 168, 174; 2 Simes, Future Interests, p. 245 and cases cited.) There are thus present in this will more than those slight indications of intent to which the per capita rule readily yields.

1956(Matter of Lawrence [ 238 N. Y. 116 ], supra; Central Hanover Bank & Trust Co. v. Pell, 208 N. Y. 354 , 360; Matter of Farmers Loan & Trust Co., 213 N. Y. 108, 174 ; 2 Simes, Future Interests, p. 245 and cases cited.) There are thus present in this will more than those slight indications of interest to which the per capita rule readily yields.” (See Matter of Gemmell [Clyde], 64 N. Y.

1949(Matter of Lawrence, supra; Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354, 360 ; Matter of Farmers Loan & Trust Co., 213 N, Y. 168, 174; 2 Simes, Future Interests, p. 245 and cases cited.) There are thus present in this will more than those slight indications of intent to which the per capita rule readily yields.

2002As at least one court has previously ruled, “The legislative history of [Decedent Estate Law §] 47-a sheds no light on the question of coverage, no reference being found to the term ‘descendants’ ” (see, Matter of Gardiner, 20 Misc 2d 722, 725 ).

2002This court attaches no significance to the fact that, at common law, both “descendants” and “issue” were mentioned in the per capita presumption, but that the statutory codifications of per stirpital presumptions mention only “issue” (contra, Matter of Phares, 38 Misc 2d 1 ).

1956S. 2d 202; Matter of Walbridge, 192 Misc. 746 .) In accordance with the foregoing conclusions the remainder is now distributable one half to Julie S. Tierney, one quarter to Julie Sullivan, one eighth to Carolann Mulheron and one eighth to Edward M.

1952What we did was to enforce a rule of property which from the use of certain words imputed to the testator a particular intention, whether present in his mind or not, unless, indeed, a contrary intention was in some other way disclosed.” (Emphasis supplied.) (New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93, 109 .) It has been written that the per capita presumption is a result of legal history and is followed despite a testator’s probable intention to the contrary.

1952What we did was to enforce a rule of property which from the use of certain words imputed to the testator a particular intention, whether present in his mind or not, unless, indeed, a contrary intention was in some other way disclosed.” (Emphasis supplied.) (New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93, 109 .) It has been written that the per capita presumption is a result of legal history and is followed despite a testator’s probable intention to the contrary.

1952(Central Hanover Bank & Trust Co. v. Pell, 268 N. Y. 354, 358 , supra; Petry v. Petry, 186 App. Div. 738, 741, 742 , affd. 227 N. Y. 621 ; Freeman v. Parsley, 3 Ves.

1914It is true that the courts of Massachusetts, unlike the courts of this state, have at *177 times construed a gift to issue as importing a division per stirpes, even without language suggestive of that intent, but the courts of both states agree in holding that the per capita rule will yield to slight indications of another meaning (Ferrer v. Pyne, supra), and we think that such indications are present here.