146 Misc. 530 | N.Y. Sur. Ct. | 1932
This is an application for the construction of the testator’s will. The testator died in 1903. By article second of his will he created a trust of $100,000 for the benefit of his nephew, Timothy Ruggles Green, during his lifetime, and directed that upon his death the principal “ shall become and form a part of the rest, residue and remainder of my estate hereinafter devised and' bequeathed and be disposed of as a part of such rest, residue and remainder.” By article fourth he devised and bequeathed his residuary estate to his executors, in trust, to pay the net annual income during the life of his brothers Oliver Bourn Green and Martin Green, in certain designated proportions, to his brothers and to certain named nieces and nephews. By article fourth-A he directed his executors, on the death of the survivor of his brothers Oliver Bourn Green and Martin Green, to pay over and convey all the trust estates then held by bis trustees under article fourth of his will, to the persons and in the proportions thereafter enumerated. The persons enumerated were nine nephews and nieces. He further provided for substitutional gifts over of each remainder to the issue of any of his nephews and nieces who shall have died leaving issue at the time fixed for the termination of the trusts, and in default of issue, to surviving brothers and sisters. If no issue, brothers or sisters, then survived, such remainder was to pass to such persons as would have taken the share had the testator died intestate at the termination of the trusts.
Oliver Bourn Green died in 1906. Martin Green died in 1917. Upon the latter’s death the trust of the residuary estate terminated. The fife beneficiary under article second, Timothy Ruggles Green, died on May 20, 1932. The question presented is, to whom should distribution now be made of the principal of the trust created under article second.
I hold that the testator died intestate as to this fund and that
Submit decree on notice construing the will accordingly.