Law of Wills, 2016A

Example 3:
In 2013, Freda left a will stating, “I leave my art collection to Vince. I leave the residue of my estate
equally to Molly and Eddie.” In 2011, Eddie died survived by one child, Cedrick. In 2015, Freda
died survived by her sole intestate heirs, her sisters, Thomasina and Lucille.
Explanation 3:
Under the “no residue-of-a residue” rule, Eddie’s portion of the residuary would fall out of the
probate estate into the intestacy estate. Thus, Vince would get the art collection. The residue would
be split between Molly, Thomasina and Lucille.
15.2.3 Class Devises
If the devise is to a class of persons and one member of the class predeceases the testator,
the surviving members of the class divide the gift.
Example:
In 2009, Tony executed a will stating, “I leave $100,000 to my nephews and the rest of my estate to
Monique.” At the time the will was executed, Tony had four nephews, Jessie, Peter, Larry and
Benjamin. Larry and Peter predeceased Tony. In 2014, Tony died survived by his nephews, Jessie
and Benjamin. Tony was also survived by his sole intestate heir, his daughter Jenny.
Explanation:
Since this is a class gift, the portion of the estate meant to go to Larry and Peter remains in the class
and goes to Jessie and Benjamin. Thus, Jessie gets $50,000; Benjamin gets $50,000; and the rest of
the estate goes to Monique. Jenny does not receive any of the estate.
The main legal issue that arises when a testator leaves a devise to a group of people is
whether or not that group constitutes a class. The test that is usually applied is if the testator was
group minded. The testator is considered to be group minded if he or she uses a class label in
describing the beneficiaries such as children, nieces and nieces. However, if the testator mentions
the members of the group by name, the court may conclude that a class gift was not intended. In
those cases, the courts reasons that the group classification is used for description and not
designation.
Matter of Seaman, 196 Misc. 202 (N.Y. Sur. Ct. 1949)
FRANKENTHALER, S.
In this proceeding to settle the final account of an administratrix c.t.a., a construction of the will is
requested. Under paragraph sixth thereof the residuary estate was given ‘to my step-mother, Alice B.
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