74 Misc. 2d 1029 | N.Y. Sur. Ct. | 1973
In these proceedings for judicial settlement of the final account of the trustees of the trust created under the will of Samuel Heyman, instructions are requested with respect to a claim for invasion of the principal of that trust.
The decedent died June 27, 1925 leaving a last will and testament which was admitted to probate in this court on July 13, 1925. By the terms of the will a testamentary trust for the benefit of the decedent’s wife and son provided that in the event the son died without a surviving wife or issue the corpus of the trust would be payable to a specific charitable organization. No provision for invasion of principal for the benefit of the income beneficiary is contained in the will. The son, Sidney A. Heyman, died August 27, 1971 leaving surviving neither his issue nor his wife nor the testator’s wife. As a result the entire corpus of the trust is payable to the Jewish Child Care Association (formerly the Hebrew Orphan Asylum of New York).
The claim here involved is for the sum of $5,000. It is alleged that said son of the testator had no income or support other than that which he received from the trust left by his father and that prior to May, 1971 the income was inadequate to meet the
The real question here is not whether the intervening death of a beneficiary before a trustee had performed a direction to invade forfeits payment, but whether the court is empowered to direct any invasion in the absence of1 an express direction in the trust where the entire corpus is payable to a charitable remainderman. Prior to the enactment of EPTL 7-1.6 (formerly Personal Property Law, § 15-a; Real Property Law, § 103-a) the courts were powerless to invade a spendthrift trust for the maintenance, education or support of an income beneficiary unless the disposing instrument expressly or impliedly so provided. “ We are all agreed upon what seems to be an obvious view that if the interest of the cestui que trust in and under this trust was by statute inalienable, the prohibition of the statute could not be circumvented by any process of estoppel. If the statute prohibited alienation by the cestui que trust of his interest by direct conveyance he could not indirectly accomplish such alienation by any consent through estoppel which he might give to a conveyance by the trustee.” (Matter of Wentworth, 230 N. Y. 176,183). As heretofore noted, the statute empowers