30 Misc. 2d 766 | N.Y. Sur. Ct. | 1961
The corporate trustee petitions for a construction of decedent’s will. The testatrix died on November 10, 1953 and her will dated February 29, 1952 was admitted to probate. She created a trust of her residuary estate for the benefit of her daughter for life with the remainder to be divided
It appears that the income beneficiary had three children who are still of tender years. On August 17, 1960 she gave birth to a mongoloid child. She has placed this child in a school especially staffed in the training and education of such children and intends to have her reared and educated there. The charge at this school is $150 per month. The petitioner is of the opinion that the charge at this school or at a similar institution not to exceed $2,000 in any one year should be paid from the principal of the trust as coming within the intent of the testatrix expressed in the provision for “ the support and education of each grandchild of mine while he or she is in attendance at any elementary * * * or other school. ’ ’ The income beneficiary, who is also a trustee, has submitted an affidavit joining in the petition. The special guardian for this infant takes a position in favor of the construction proposed by the petitioner to the extent of $1,800 per year. The special guardian for the other three infant grandchildren, who are also primary remaindermen of the trust, and of a contingent remainderman opposes the application. He urges a strict construction of the words used as being for the intellectual enlightenment of the grandchildren and that this infant, because of her unfortunate condition, does not come within the purview of the language used.
Consonant with the admonition of the testatrix to the corporate trustee that it should “ exercise its discretion liberally to that end ’ ’ the court holds that the petitioner is authorized to pay a sum not to exceed $2,000 in each year during the minority of this infant for her “ support and education ” at the school in question or a similar institution provided, of course, that the trust continues for that period of time.