In re the Accounting of Buchner

280 A.D. 953 | N.Y. App. Div. | 1952

In a proceeding for the settlement of an intermediate accounting by trustees, decree of the Surrogate’s Court, Kings County, construing will and dismissing objections modified on the law by striking out all of the ordering paragraphs save the third and by providing in lieu thereof as follows: “ Ordered, adjudged and decreed that the will directs the trustees, after making the requisite payments out of income to and on behalf of the widow, to pay therefrom during her life, for the education, support and maintenance of the grandchildren ‘such sums as my trustees shall deem advisable in their discretion’ and to pay the balance to the son.” As so modified the decree is unanimously affirmed, with costs to both parties, payable out of the estate. The testator provided for termination of the trust and equal sharing of corpus by the son and the grandchildren upon (1) the death of the widow; and (2) attainment of majority by all of the grandchildren. He contemplated that these events would occur in that order. After the death of the widow the trustees were directed to pay out such sums as they deemed advisable for the education and maintenance of the grandchildren until the youngest arrived at majority, upon the attaining of which event the corpus was to be divided. Thus the testator contemplated that during the entire existence of the trust the grandchildren were to be paid such sums as the trustees deemed advisable. The fact that the widow has survived attainment of majority of the youngest grandchild does not affect the provision with respect to the payment of income to the grandchildren. The context of the will clearly shows, in any event, that such direction obtained until the death of the widow in that such a direction, without restriction as to time, immediately precedes the provision relating to termination of the trust commencing with the words “After the death of my wife”. No issue has been presented as to abuse of discretion on the part of the trustees. The objection with respect to the characterization of the grandchildren in the account, save insofar as it warrants construction of the will pursuant to section 145 of the Surrogate’s Court Act, is without substance. Further objections, if any, cannot be disposed of in advance of their interposition. Present — Carswell, Acting P. J., Johnston, Wenzel, MacCrate and Schmidt, JJ.