163 Misc. 1 | N.Y. Sur. Ct. | 1937
The will of this testatrix has been the subject of numerous constructions in judicial proceedings. Further questions have arisen in the present accounting proceeding requiring determination by the court. They involve the disposition of the principals of two trusts created by the will, for which the trustees are accounting.
(1) Under subdivision (e) of paragraph seventh of the will the testatrix gave “ To Mrs. Gertrude L. Forman, the income on the sn.m, of fifty thousand dollars ($50,000) during her life, and on her death, the sum of thirty thousand dollars ($30,000) thereof to become part of my residuary estate, and the sum of ten thousand dollars ($10,000) principal to go to each of her sons, George L. Forman and Charles E. B. Forman, if they are then living; but if either or both of them are dead, the share of such decedent to become part of my residuary estate.”
Mrs. Forman died on November 14, 1934, thus terminating the trust. George L. Forman and Charles E. B. Forman, the remainder-men specifically named therein, survived her. The assets of the estate at the death of the testatrix were insufficient to satisfy the general legacies, and, together with other outright cash legacies provided for under paragraph sixth of the will, and legacies in trust contained in paragraph seventh, the trust for Mrs. Forman abated. At the time of its creation it was valued at approximately $22,000.
On behalf of Charles E. B. Forman and the estate of George L. Forman, who has since died, it is contended that the legacies to them of portions of the remainder are specific legacies of $10,000
I hold, moreover, that the determination made in 1917 by Surrogate Fowler (Matter of Brundage, 101 Misc. 528), as to the disposition of the gift in remainder of $5,000 to the Home for Old Men and Aged Couples, under the trust for Mary E. Taylor under this will, is neither res adjudícala nor a precedent here, nor is it applicable to the present situation.
It is proposed by the trustees that that portion of the remainder of the trust created for Gertrude L. Forman, which is directed to become part of the residuary estate, and that the remainder of the trust created for the benefit of Abby Vanderhoef and Edward A. Vanderhoef should be applied to the payment of the other general gifts bequeathed by the will, including the general legacies of cash, the continuing trusts and the trusts which have terminated and the remainders of which have vested in the issue of the life beneficiaries thereof, in proportion to the respective amounts fixed by the will. It is also proposed that the amounts received by the Forman trust from other trusts created under the will should be used in paying the shares of the general legatees of cash and the shares of Charles E. B. Forman and George L. Forman as the remaindermen of the Forman trust. It is further proposed that the funds under administraten be so marshalled that each of the general legatees of cash, the trustees of the continuing trusts and remaindermen of the trusts which have terminated will receive an amount equal to his or its proportionate share in the Vanderhoef fund, together with an amount equal to his or its proportionate share in the portion of the Forman fund which is directed to become part of the residuary estate, and that the entire principal of the Vanderhoef fund be used in paying the amounts payable to the general pecuniary legatees. This plan of distribution of the remainders recommended by the trustees appears to be equitable and will be approved by the surrogate.
Submit decree on notice construing the will and settling the account in accordance with this decision.