## Facts

- A testator died in 1932, survived by his widow and two children (a son and a daughter).
- The will gave the residuary estate to the widow for life, with broad authority to use principal for her support and maintenance; the will stated that no trust was created.
- The will then provided that, upon the widow’s death, the “rest, residue and remainder” would go to the son and daughter “share and share alike,” “absolutely and forever.”
- The will added that if either child died before the widow “leaving descendants,” those descendants would take the deceased child’s share.
- The daughter died before the widow, leaving no descendants; the widow died several years later.
- In an accounting proceeding, the daughter’s executor claimed her half of the remainder passed through her estate.
- The trial-level court construed the daughter’s interest as vested at the testator’s death, subject to divestiture only if she died before the widow leaving descendants.
- The intermediate appellate court construed the will as requiring each child to survive the widow, concluded the daughter’s share failed, and treated that share as passing by intestacy.
- The daughter’s executor appealed.

## Issues

1. Whether the remainder interests to the named children vested at the testator’s death, subject to divestiture only if a child died before the life tenant leaving descendants.
2. Whether the will instead imposed an unstated survivorship condition requiring a child to outlive the life tenant, so that the daughter’s share failed when she died before the life tenant without descendants.

## Decision

- The court reversed the intermediate appellate court and reinstated the trial-level construction.
- The daughter took a vested remainder at the testator’s death; possession was postponed until the life tenant’s death.
- The substitutionary clause applied only if the daughter died before the life tenant leaving descendants; because she left none, no divestiture occurred.
- The daughter’s vested remainder passed under her will, and her executor had standing in the accounting.

## Legal Principles

- Remainders to named beneficiaries stated in absolute terms are presumed to vest at the testator’s death unless the will clearly requires survivorship.
- A clause directing that descendants take if a remainderman dies before the life tenant “leaving descendants” is generally read as a limited divesting or substitutionary provision, not as a general condition of survival.
- Additional language will not be read to cut down a vested gift unless it is as clear and decisive as the language creating the vested remainder.
- Construction of a will begins with the text; where common testamentary formulas have a settled judicial meaning, that meaning informs interpretation absent clear contrary language.

## Conclusion

The court held that the daughter’s remainder interest vested when the testator died and could be divested only upon the specified event—death before the life tenant leaving descendants—which did not occur; therefore, her share passed through her estate rather than by intestacy.


Matter of Krooss, 302 N.Y. 424, 99 N.E.2d 222 (N.Y. 1951)