11 Misc. 2d 1060 | N.Y. Sur. Ct. | 1958
As an incident to judicial settlement of its final account the trustee requests a construction of the will to determine the persons to whom the remainder of a trust
“ A remainder gift to named remaindermen in existence at the date of a testator’s death imports immediate vesting” (Matter of Ablett, 3 N Y 2d 261, 271). As a rule of construction the “ divide and pay over ” rule is not applied when payment to named beneficiaries is postponed only to let in an intermediate estate or Avhen the gift is of the residuary estate and its application Avould result in partial intestacy (Matter of Montgomery, 258 App. Div. 64, affd. 282 N. Y. 713; Matter of Banker, 223 App. Div. 496, affd. 248 N. Y. 596; Matter of Hallock, 283 App. Div. 1091, affd. 309 N. Y. 994; Matter of Crane, 164 N. Y. 71; Matter of Staats, 272 App. Div. 139, affd. 297 N. Y. 648; Matter of Sweazey, 2 A D 2d 292; Fulton Trust Co. v. Phillips, 218 N. Y. 573; Matter of Watson, 262 N. Y. 284).
If testatrix had stopped after naming her nephews as remaindermen, there could be no question that the shares of each were indefcasibly vested. However she went on to say, “in case of the death of any one of my said nephews the children of said nephew are to receive the father’s share.” The language employed by testatrix created a substitutional gift in favor of the children of a named nephew in the event of his death during the lifetime of the life beneficiary (Marsh v. Consumers Park Brewing Co., 220 N. Y. 205; Lyons v. Ostrander, 167 N. Y. 135; Matter of Bigelow, 285 App. Div. 1072, affd. 309 N. Y. 884; Matter of Elting, 268 App. Div. 74, affd. 294 N. Y. 941; Matter of Immoor, 142 N. Y. S. 2d 795). The share of each of the named remaindermen vested in them at the time of testatrix’ death subject to divestment in the event — and only in the event —
Accordingly, distribution of the remainder is directed to he made one third to the personal representatives of each of the two named nephews who left no children surviving them and one third to the children of the named nephew who did leave children surviving him.
Settle decree on notice.