Matter of Larkin

In Matter of Larkin (9 NY2d 88), the testator left his wife a life estate in the marital residence and $ 20,000 in securities (or cash) in trust (para Fourth), remainder to his sons at the wife's death. Paragraph Eleventh of the will further provided (at 91): "In the event that any of my said sons should die leaving descendants, said descendants shall take the share of any such deceased son, per stirpes and not per capita." The final paragraph of the will named two of his sons as executors and "trustees of the trusts hereinabove set out" (id.). The Court was faced with the question of whether, in regard to the trust provisions of the will, paragraph Eleventh was to be construed as mere surplusage or as a substitutionary gift (to the descendants of a remainderman) conditioned upon the death of a remainderman during the enjoyment of the life estate. One of the testator's sons predeceased the life tenant, his mother. The son was survived by his widow, to whom he bequeathed his entire estate by will, and his three children. The Court held that the testator's manifest intention was that there should be a substitutionary gift over to the descendants of the remaindermen in the event the remaindermen were not living at the time of distribution, the death of the life tenant.