2 Misc. 2d 482 | N.Y. Sur. Ct. | 1956
As an incident to their accounting, the petitioning trustees request a judicial determination of the termination of the trust created under the “ Fifteenth ” clause of the testatrix’ will which reads as follows:
“1. To invest the said portion or share and to pay the net income arising and accruing thereon to the said Philip Victor Maysmor Wamsley during his life in equal quarterly payments.
“2. On the death of the said Philip Victor Maysmor Wamsley to pay the principal of the trust herein created to the said Gilbert Norman Wamsley absolutely.”
Philip and Gilbert mentioned above were second cousins of the testatrix and brothers. Gilbert and another were named in the will as the executors and trustees thereunder. Letters testamentary and of trusteeship were granted to them by this court on April 23,1933. Subsequently both fiduciaries died and thereafter Philip, who was the sole distributee and the administrator of his brother’s estate, petitioned for letters of administration o. t. a., d. b. n., and of trusteeship herein jointly with his wife. Such letters were granted to them on December 29,1937. Their account as administrators c. t. a., d. b. n., was judicially settled on March 10, 1938, by a decree which directed them to transfer one half of the residuary estate to Philip as administrator of Gilbert’s estate and one half to Philip and his wife as successor trustees of the said trust. This they did, thereby carrying out the provisions of the “ Fifteenth ” clause of the will. They are now accounting as trustees and request that this court “ judicially determine and declare that the life estate of Philip in the trust fund created under the ‘ fifteenth ’ clause of the will has been extinguished and is merged with the ownership in fee, and that Philip is the sole owner, absolutely and forever of all of the property constituting the trust fund, ’ ’ that as a consequence any requirements for a judicial accounting be dispensed with and that the petitioners and the surety be discharged.
The basis for the requested relief terminating the trust is the fact that the testatrix’ will made no alternative provision in the event the remainderman predeceased the life tenant, which event occurred, and the allegation of a “ merger of the estates,
The court holds that the testatrix created a valid trust which is not to terminate until the death of the income beneficiary. The trust is indestructible. Neither a desire to condone its destruction, nor the lack of opposition to the application, nor the comparatively small trust fund involved, nor other possible considerations no matter how worthy, give the court the right ox-power to disregard “ the stringent restrictions of the statutes and the numerous and emphatic decisioxxs of the Court of Appeals which prohibit the destruction of trusts ” (Matter of Hanna, 155 Misc. 833, 834; Matter of Freiberger, 177 Misc. 592; Matter of Hyatt, 81 N. Y. S. 2d 911, Personal Property Law, § 15; Real Property Law, § 103). As stated in Matter of Higgins (205 Misc. 385, 391), “ So long as the trust purpose as a practical matter can be accomplished, it should be.” “ Its duration may not be foreshortened by judicial fiat or by any act of the interested parties ” (Matter of Duignan, 85 N. Y. S.
The two cases cited in petitioner’s memorandum are inapposite. Ackerman v. Ackerman (222 App. Div. 229, affd. 251 N. Y. 533) which was a partition action, involved construction of a will which devised a vested remainder capable of alienation and not a trust to apply income wherein the right of the life beneficiary to alienate income is restricted by statute as a legislative declaration of public policy. In that case the death of the remainderman, intestate, during the lifetime of his sole distributee who was the life tenant of the real property devised, resulted in a merger of the life estate in the fee and therefore the property was devisable by the life tenant’s will, to the exclusion of any interest therein of the plaintiff and other parties in the partition action. In Matter of Arnstein, decided by Surrogate Collins (N. Y. L. J., May 26,1948, p. 1969, col. 6), the other case relied upon by petitioner, the residuary trust created by the testatrix named the petitioner as sole trustee and sole life beneficiary with the remainder to the petitioner’s son. The son died leaving a, will in which his entire estate was bequeathed to his mother who qualified as executrix. The court held that the petitioner had acquired a legal estate identical with the equitable estate which the testatrix had sought to create “with the result that the trust estate fades into the legal estate [citing cases]. The petitioner’s acquisition of the remainder interest in this trust by reason of the operation of the will of the named remainderman brings about the merger of the two estates. Hence the petitioner is correct in her contention that she is the owner in fee of all of the property passing under the residuary clause of the will of deceased. (Restatement of Law of Trusts, section 341; Ackerman v. Ackerman, 222 App. Div. 229, affd. 251 N. Y. 533).” In the instant application, however, there is no merger of estates, the trust is subsisting and valid and its termination before the death of the life tenant is precluded by section 15 of the Personal Property Law and the testamentary intent herein. (3 Scott on Trusts, §§ 337, 341; 1 Perry on Trusts, [7th ed.], § 347.) Proceed accordingly.