Estate of Pfadenhauer

BARNARD, P. J.

This is an appeal from a decree establishing who are entitled to distribution under a will executed by the deceased in 1939. At that time her nearest kindred were two sisters, Susan Dennis and Kate Armstrong. In her will the testatrix left $100 to her church and provided that the remainder of her estate should go as follows: A one-third interest to her sister Susan Dennis, a one-third interest to her sister Kate Armstrong, a one-sixth interest to her niece Dora Kirby, and a one-sixth interest to her niece Marguerite O’Reilly.

[687]

The fourth paragraph of this will reads:

“I have purposely made no provision for any other person, whether claiming to be an heir of mine or not, and if any person, whether a beneficiary under this will or not, or mentioned herein, shall contest this will or object to any of the provisions hereof, I give to such person so contesting or objecting the sum of one ($1.00) Dollar and no more, in lieu of the provisions which I have made, or which I might have made, for such person so contesting or objecting. In connection with this paragraph I specifically have in mind all of my relatives not herein specifically mentioned, and it is my will and wish that none of my said relatives other than those specifically herein mentioned receive anything from my estate.”

The testatrix died on October 30, 1950, leaving no spouse and no-issue, and both Susan Dennis and Kate Armstrong had died before that date. Kate Armstrong was survived by her daughters Dora Kirby and Marguerite O’Reilly, who were both living when the testatrix died. The lineal descendants of Susan Dennis, who were living at the date of the death of testatrix, included a son, five daughters and four- children of a deceased son.

The will was admitted to probate and in due course Marguerite O’Reilly filed a petition for a determination as to the persons entitled to distribution, alleging that she and Dora Kirby are entitled to have all of the estate, except the gift to the church, distributed to them in equal shares. This claim was based on the contention that since the survivors of Susan Dennis were not mentioned in the will they were excluded, by the fourth paragraph, from receiving any part of the estate. A claim of interest in the estate was filed by Dora Hecht, a daughter of Susan Dennis, on the ground that the lineal descendants of Susan Dennis are' entitled to her one-third of the residue of the property of said estate. After a hearing the court found and concluded that by virtue of the last sentence of the fourth paragraph of the will the testatrix died intestate as to the one-third of the residue she had bequeathed to Susan Dennis; that the will had made no disposition of that one-third interest; that Dora Kirby and Marguerite O’Reilly were entitled to one-half of the one-third interest bequeathed to Susan Dennis in addition to the shares specifically bequeathed to them in the will; and that the other half of the one-third interest bequeathed to Susan Dennis should be distributed to her