17 Misc. 2d 352 | N.Y. Sur. Ct. | 1959
This proceeding has been instituted for a construction of article Fourth of the testator’s will wherein he provided a trust for the benefit of his widow. The pertinent text reads: “ Upon the death of my wife, or in the event she does not survive me, I direct my executors and trustees to distribute the principal of the trust fund hereinbefore created for her benefit together with ¿ny accumulation, to my children Evelyn Cole Burns and W. Harold Cole, in equal shares, share and share alike, per capita and not per stirpes.”
The life beneficiary of the trust is living, as is the remainder-man W. Harold Cole, but Evelyn Cole Burns survived her father and later died. The executors of the estate of the deceased daughter seek a determination that their testatrix was bequeathed a vested remainder interest in the trust.
The text under consideration leaves no doubt but that the testator intended to create vested remainders in the remainder-men who survived him. The disposition of the trust principal was to remaindermen nominatim without condition and without a gift over in the event of their deaths. A gift nominatim, of itself, creates a strong inference that an immediate vesting of
It is held that upon the termination of the trust the half portion of the remainder bequeathed in the will to the testator’s daughter will be payable to the representative of her estate (Matter of Watson, 262 N. Y. 284; Matter of Seaman, 147 N. Y. 69; Matter of Bloomberg, 6 A D 2d 132).
Submit decree on notice construing the will.
