## Facts

- Josephine F. Edwards died on June 26, 2005, leaving a will that was admitted to probate in the Surrogate’s Court, Nassau County.
- The fiduciary filed a post-probate petition seeking construction of the residuary clause and the effect of EPTL 3-3.3 (anti-lapse) and EPTL 3-3.4 (lapsed residuary dispositions).
- Article SECOND disposed of the entire residuary estate in four equal 25% shares:
  - A. 25% to her brother, Robert Edwards, “per capita, absolutely and forever.”
  - B. 25% to her brother, John Edwards, “per capita, absolutely and forever.”
  - C. 25% to her niece, Ann Kaufman, “per capita, absolutely and forever.”
  - D. 25% to six named nieces and nephews (including Robert M. Edwards), “share and share alike, per capita, absolutely and forever.”
- Robert Edwards predeceased the testator and was survived by his son, Robert M. Edwards (who also was a named beneficiary in paragraph D).
- Ann Kaufman also predeceased the testator, leaving no substitute taker under the will.

## Issues

1. Did the words “per capita” in the 25% residuary gift to Robert Edwards constitute an “otherwise provided” direction that prevented application of EPTL 3-3.3, so that Robert’s son could not take Robert’s share by substitution?
2. If a residuary share failed, how should the failed residuary share be distributed under EPTL 3-3.4 among the remaining residuary beneficiaries, including any beneficiary taking by substitution under EPTL 3-3.3?

## Decision

- The court construed the will and applied EPTL 3-3.3 and EPTL 3-3.4 to carry out the residuary plan without partial intestacy.
- The court treated “per capita,” when attached to a gift to a single named individual, as surplus wording with no real distributive function in that context.
- Because “per capita” did not amount to an “otherwise provided” direction within EPTL 3-3.3(a)(2), the anti-lapse statute applied to the gift to Robert Edwards.
- Robert M. Edwards, as Robert Edwards’s issue, took Robert Edwards’s 25% residuary share by substitution under EPTL 3-3.3.
- Ann Kaufman’s 25% residuary gift failed; under EPTL 3-3.4, that failed residuary share was redistributed to the remaining residuary beneficiaries (and the substituted taker participated in the residue as Robert Edwards would have).

## Legal Principles

- EPTL 3-3.3 (anti-lapse) saves certain testamentary gifts to specified relatives (including a brother) when the beneficiary predeceases the testator but leaves issue who survive the testator, unless the will provides otherwise.
- To displace EPTL 3-3.3, the will must contain a clear contrary direction; ambiguous or nonfunctional wording is not enough.
- “Per capita” describes equal division among multiple takers; when used in a gift to one person, it does not, by itself, create a substitutional plan or negate anti-lapse.
- Courts try to give effect to all words in a will, but may disregard words that appear mistakenly inserted and have no effect within the clause where they appear.
- Under EPTL 3-3.4, a failed residuary disposition generally passes to the other residuary beneficiaries rather than by intestacy; a beneficiary who takes by substitution under EPTL 3-3.3 is treated as standing in the predeceased beneficiary’s place for purposes of sharing in the residue.

## Conclusion

In re Edwards held that adding “per capita” to a residuary gift of a fixed 25% share to a single named brother did not show a clear intent to bar EPTL 3-3.3, so the brother’s son took that share by substitution; any other failed 25% residuary share was redistributed among the remaining residuary beneficiaries under EPTL 3-3.4, keeping the lapsed portion within the residue.


In re Edwards, 13 Misc. 3d 210 (2006)