7 Misc. 2d 561 | N.Y. Sur. Ct. | 1957
In this accounting proceeding the trustee requested a construction of the fourth paragraph of the will of Mary Frances Askew who died on February 16,1938. On the death of the testatrix, all persons named in the will were alive. The first life tenant died on November 22, 1946 and the second life tenant died on April 16, 1955. Between the death of the testatrix and the second life tenant, three of the six named remaindermen died. The pertinent provisions of the will are as follows: ‘ ‘ 2. I wish the income of my estate to be used in the care of my sister Elizabeth Virginia Askew in the same manner in which I am now caring for her. 3. I wish the income from my estate to be given to my sister Katharine Askew Herriman during her lifetime should she survive my said sister Elizabeth. 4. After the deaths of my said sisters Elizabeth and Katharine, I wish my estate to be equally divided among my legal surviving heirs, Charles Bernard Askew, Claire Askew Bonacker, Alice Claire Alsobrook, Anna Katharine Cooke, Elbridge Askew Herriman and Deane Thomas Herriman.” The only question involved is the construction of the fourth provision. Is the estate to be divided among the named beneficiaries surviving the testator or among those surviving the secondary life tenant?
A remainder is not to be considered as contingent in any case where it may fairly be construed to be vested, the law favoring
Compensation of the attorneys for the petitioner is fixed and allowed in the sum requested. The sole objection to the account is overruled and the same is settled. Submit decree construing the will and settling the account accordingly, on notice.