New York Law (NYLE) Practice Exam

In a will leaving the residuary estate to "his issue," who takes under the will if the testator is survived by children and grandchildren?

1. The issue take by representation

2. Only the children inherit

3. Only the grandchildren inherit

4. The estate is divided only among the grandchildren

The correct answer is: The issue take by representation

The correct answer is that the issue take by representation, meaning that the children and grandchildren of the testator would inherit the residuary estate based on the principle of per stirpes distribution. In New York law, "issue" generally refers to all descendants of the testator, including children, grandchildren, and further generations. When a will specifies that the residuary estate is to be distributed to "his issue," it means that the estate will be divided among all of the testator's descendants, not limited to just the children or grandchildren. The concept of representation is important here because it determines how the share of an heir who predeceases the testator is treated. If a child of the testator is alive, they take their share directly. However, if one or more children have predeceased the testator but have left children (the testator's grandchildren), then those grandchildren will take the share that would have gone to their parent, effectively allowing them to inherit through representation. Therefore, in this scenario, both the surviving children and the grandchildren would partake in the distribution of the residuary estate, showcasing the application of the principle of representation in inheritance distribution. This ensures that each branch of the family is represented in the inheritance process