37 Misc. 2d 363 | N.Y. Sur. Ct. | 1962
In this proceeding to settle the final account of the executor instructions are requested which involve
In her will, Helen B. Connor, the testator’s widow, attempted to exercise the power of appointment as follows:
“ The bequest made to me by my late husband, Patrick J. Connor, in Paragraph ‘ Third ’ of his will, shall be kept intact, and after all legacies and expenses are paid shall constitute the trust herein created. The income of said trust is to be divided into six (6) equal shares and shall be paid at least once a year to the following persons, to-wit: My sisters, Mary Dempsey, Margaret Harder, Katherine McCarthy, Bose Templeton; and Irene Boyle; and to my sister-in-law, Margaret Peyton, share and share alike.
“ If and when the enterprises and/or businesses founded by my late husband are sold or liquidated, the trust principal is then to be paid over to the above-named six persons or their heirs, share and share alike; the heirs are only to take the share of any deceased legatee herein named and no more.”
In a codicil to her will she revoked the last paragraph above set forth, substituting the following: “If and when the enterprises and/or businesses founded by my late husband, Patrick J. Connor, are sold or liquidated, the trust principal is then to be distributed and paid over, share and share alike, to the surviving legatees herein named and only to them and not to the heirs or next-of-kin of any deceased legatee. In other words, only those legatees alive when the trust is liquidated are to receive the principal of said trust and no other.” It is conceded that some of the businesses and enterprises of this decedent have not been sold or liquidated.
It is contended by the legatees under the donee’s will that the trust may be upheld as one for the sale of real estate under subdivision 2 of section 96 of the Real Property Law. Such a contention is without merit because neither the will nor the codicil of the donee directs the sale of real estate nor do they contain a power of sale and furthermore, the parties interested in the income differ from those who may take the remainder, as only the survivors of this group will take upon sale (Matter of Richter, 14 Misc 2d 1079 ; Matter of Callister, 282 N. Y. S. 367).
Since the trust is invalid it follows that the purported exercise of the power of appointment is invalid and of no effect (Guaranty Trust Co. v. Harris, 267 N. Y. 1; Matter of Fowler, 31 Misc 2d 62; Matter of Strong, 171 Misc. 445; Matter of Kelly, 161 Misc. 255).
In view of the above the fund sought to be appointed, namely, 55% of the residuary estate, must be paid as a gift over to the trustees or persons named in the will of the donor who would take upon failure to validly and effectively exercise the power of appointment.
Objections to the account have been interposed by the administrator of the estate of Mary Dempsey, one of the persons named in the will of the donee who survived her but subsequently died. While such objections would be overruled they have become academic by reason of the holding of the court herein on the question of construction.
Objections to the account have also been interposed by the administrator c. t. a. of the estate of the donee, objecting to the allowance of certain commissions to the executor on income representing rentals from real estate based on the allegation that he was the controlling stockholder individually or as fiduciary of corporations from which such income was received. The executor in his reply points out that the account and supple
The reasonable compensation of the attorneys for the attorney fiduciary is fixed and allowed in the amount requested.
Allowance to counsel for services rendered in the construction proceeding will be fixed upon the settlement of the decree. The attorneys requesting such allowances are directed to file affidavits of service in support thereof.