N.Y. Estates, Powers & Trusts Law § 3-3.3: Disposition to issue or brothers or sisters of testator not to

§ 3-3.3 Disposition to issue or brothers or sisters of testator not to

lapse; application to class dispositions

(a) Unless the will whenever executed provides otherwise:

(1) Instruments executed prior to September first, nineteen hundred

ninety-two. Whenever a testamentary disposition including a disposition

of a future estate other than a future estate subject to a condition

precedent of surviving the testator is made to a beneficiary who is one

of the testator's issue or a brother or sister, 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, by representation.

(2) Instruments executed on or after September first, nineteen hundred

ninety-two. Whenever a testamentary disposition including a disposition

of a future estate other than a future estate subject to a condition

precedent of surviving the testator is made to a beneficiary who is one

of the testator's issue or a brother or sister, 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, by representation.

(3) The provisions of subparagraphs (1) and (2) of this paragraph

apply to a disposition made in the form of a class gift other than a

disposition to "issue,""descendents," or a class described by language

of similar import, as if the disposition were made to the beneficiaries

by their individual names, except that no benefit shall be conferred

hereunder upon the surviving issue of an ancestor who died before the

execution of the will in which the disposition to the class was made.

(b) As used in this section, the terms "issue", "surviving issue" and

"issue surviving" include adopted children and their issue to the extent

they would be included in a disposition to "issue" under 2-1.3 and

subdivision two of section one hundred seventeen of the domestic

relations law, and nonmarital children; for this purpose, a nonmarital

child is the child of his mother and is the child of his father if he is

entitled to inherit from his father under 4-1.2.