121 Misc. 769 | N.Y. Sur. Ct. | 1923
In this accounting proceeding a construction pf the will is asked and approval is requested of the sale of stock belonging to the estate. After making certain pecuniary bequests, the will directs a number of shares of stock in a restaurant corporation in New York city, or the proceeds thereof, if sold, to be divided equally into two trusts.
The testatrix’s direction in relation to the first trust is that the income thereof was payable to her son, Ralph B. Drake, for his life. Upon his death the principal was directed to be paid to his children. If none were living at his death, the income was payable to the wife, Lydia, until her remarriage or death. In case Ralph should leave no children, there was a gift over of the remainder to the other son, Leon A. Drake, or to his issue. Certain other contingencies are provided for and in default of all the other remaindermen named, the remainder vested in decedent’s niece, Hazel Burnham, or her heirs.
With regard to the second trust, the will directs the payment of the income to the remaining son, Leon A. Drake, with provisions similar to those of the first trust for the benefit of his issue and his wife, with the same scheme for the disposition of the remainder.
In a codicil executed by the testatrix the provisions of the trust for the fife of Ralph B. Drake were changed in one particular. The subsequent life estate for Lydia H. Drake was revoked. She was excluded from any participation, and the benefits given to her originally were directed to inure to the benefit of any subsequent wife that Ralph shall have married. The son Ralph now has no issue, but there is in existence an infant child of the son Leon, who has a remainder interest in both trusts.
The primary intention of the testatrix, ascertained by a careful reading of her will and codicil, was to give the income of each trust to each son for fife, in order to guard against their possible improvidence. Her secondary purpose was to give the remainder to the
The trust for the life of Ralph may not be set aside, because of the remote possibility that he will marry a person not in being at the death of his mother. But for this possible defect, the trust is legal. The authorities do not permit an ulterior, unlawful limitation to invalidate the legal dispositions of the will. The policy of the courts is to save the valid provisions. Matter of Colegrove, 221 N. Y. 455; Kalish v. Kalish, 166 id. 368; Matter of Central Union Trust Co., 193 App. Div. 292. Nor will a construction now be given invalidating the trust in anticipation of the actual happening of the event, especially when the alleged invalid contingency may never result. Matter of Mount, 185 N. Y. 162, 170; Matter of Franklin Trust Co., 190 App. Div. 575, 577; Beers v. Grant, 110 id. 152; affd., 185 N. Y. 533; Matter of Robert J. Horner, 120 Misc. Rep. 450; affd., 206 App. Div. 741.
The second ground urged for breaking down the trusts is that an ademption of the legacy resulted because the testatrix in her lifetime entered into an agreement for the sale of the stock bequeathed
The third method urged to break down the trust is the request for the direction of the payment of a very large part of the proceeds of the stock to the life tenants as income upon the theory that the value of the stock has been substantially increased by profits of the business since the death of the testatrix. This question as to the amount, if any, of income payable to the life tenants from the trust may be reserved for a supplemental decree and direction in this proceeding, when the sale is completed.
I have carefully considered the situation in which the sale of the stock was made, the price offered, the possibility of competition and the value of the business as testified to by several experts. While the profits earned appear to be large, I am of the opinion that the terms of the sale are reasonable and should be confirmed, especially because of the speculative nature of the business. The executor should promptly deliver to the trustees the proceeds of the sale of the restaurant stock.
Submit decree and proceed with the account accordingly.
Decreed accordingly.