Matter of Montano

In Matter of Montano, 137 Misc. 2d 518 (Surr. Ct. Ulster Co. 1987) there were two groups of residuary beneficiaries (a) and (b). The Surrogate stated in a holding that seems equally applicable to the case before the Court: The clear intent of the testatrix was to leave one half of her estate to group A and one half to group B. The diminution of either group does not alter the amount of the estate each group was intended to receive. EPTL 3-3.4 was enacted to provide a method of distribution of lapsed bequests within the testamentary scheme and thus avoid assets passing through intestacy. Applying EPTL 3-3.4 to the assets passing through subdivision (a) satisfies the statutory requirement as well as the testamentary scheme.