Matter of Krooss

In Matter of Krooss, 302 NY 424 [1951]) the Court of Appeals was asked to construe a will which provided for a gift to two named children, but "in the event that either of my children aforesaid should die prior to the death of my beloved wife . . . leaving descendants, then it is my wish and I so direct that such descendants shall take the share their parent would have taken if then living, share and share alike, to and for their own use absolutely and forever". One child predeceased the life beneficiary, without issue surviving. The court found that the remainder had vested in the named children, and that the testator's additional language indicated the testator's intent that the interests would only divest if two further events both occurred: (1) that the child predeceases the life beneficiary; and (2) that the predeceased child is survived by issue. Significantly, the court noted that the language did not create an alternative gift. "There was no such specific and unique disposition of the remainder in the event of [the child]'s death prior to that of her mother; it was to go to her descendants only if she left descendants surviving. In a word, not [the child]'s failure under all circumstances to survive was specified as a condition defeating her estate, but only her death before her mother if she left descendants" (id. at 432).