208 Misc. 215 | N.Y. Sur. Ct. | 1953
The trustees have requested instructions as to the persons to whom the income from the trust. created by paragraph fifth of decedent’s will is payable. After providing for the payment of debts, and making cer
Upon the termination of the trust testator provided that the principal should be divided into seven parts, of varying percentage amounts, and paid over to certain charities, and other persons. Most of these residuary bequests are subject to the conditions of survivorship .of the legatee, or to agreement by the legatee to comply with various requirements imposed on the gifts by the testator.
The principal presently in the hands of the trustees amounts to about $117,000 and income in excess of $2,000 per annum is being realized from the trust corpus. Marvin Smith, the primary income beneficiary, is still living; Henry C. Nelson, the secondary life beneficiary, died in 1946 and thereafter payments of half the income in excess of $2,000 were made to Florence R. Thomas and Dean Nelson until October 16, 1951, when Dean Nelson died. The will makes no provision for disposition of the share of income formerly paid to Dean Nelson and the trustees ask instructions from the court as to the disposition of such income.
As paragraph fifth expressly provides that one half the income in excess of $2,000 “ be paid over in equal shares to my sister Florence and my brother, Dean ’ ’, it is clear that the testator did not intend the entire amount of excess income to be paid to Florence as the survivor of Florence and Dean (Matter of Cortright, 200 Misc. 281). As no other provision of the will relates to the excess income there is an intestacy as to this amount.
Where income is thus undisposed of by the will, section 63 of the Real Property Law provides that “ such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.” Even though some of the presump
Submit decree on notice settling the account accordingly.