Opinion
February 16, 1971
Appeal from the Surrogate's Court, Kings County.
EPTL 3-3.3 provides: "(a) Unless the will provides otherwise: (1) Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, per stirpes." We agree with the learned Surrogate that under the circumstances of this case the use of the words "per capita and not per stirpes" in the will does not constitute an "otherwise" provision within the meaning of the statute (see Matter of O'Neil, 174 Misc. 213; Matter of Caron, 232 N.Y.S.2d 121). While we do not agree with the learned Surrogate that the testimony of the subscribing witness which was offered to establish the meaning of the words "per capita and not per stirpes" was inadmissible (see Matter of Ricks, 18 N.Y.2d 640), the error was not prejudicial in view of the Surrogate's statement, as the fact finder, that "even if admissible, the extrinsic evidence would be entitled to little weight", because the "recollection of a witness of the purported substance of words spoken eighteen years before is subject to a high probability of error even when recounted by an attorney." We concur in the Surrogate's evaluation of the weight to be accorded to such evidence. Rabin, P.J., Hopkins, Latham, Shapiro and Brennan, JJ., concur.