140 Misc. 595 | N.Y. Sur. Ct. | 1931
Certain questions of testamentary construction have been raised affecting the “ second ” item of the testators’
The directions respecting the other two daughters, whereas not worded in identical form, are substantially the same.
It is obvious that the so-called trusts erected present no active duties by the trustees and hence come within the provisions of section 93 of the Real Property Law providing that in such cases the estate vests in the nominal cestuis que trustent. (Woodgate v. Fleet, 64 N. Y. 566, 573; Jacoby v. Jacoby, 188 id. 124; Matter of Gambrill, 135 Misc. 516, 520.)
It would seem apparent that the so-called trust gifts in each case were gifts to classes, the composition of which is to be determined as of the time of vesting, which in this case is the death of the testator. (Toher v. Crounse, 57 Misc. 252, 262; affd., 127 App. Div. 934.)
Since all of the children thus benefited are infants, it is obvious that general guardians must be appointed for them upon proper application for that purpose. By the appointment of the respective mothers, the suspensory provisions of the gifts can be given ' practical effect. (Woodgate v. Fleet, 64 N. Y. 566, 574.)
The final question in the case relates to the infant George Levy, who was born on November 28, 1930, six months and twenty-eight days after testator’s death, which occurred on April 30, 1930. In Matter of Gebhardt (139 Misc. 775) this court had recent occasion to consider at some length the authorities respecting the rights of a child en ventre sa mere to be included in a gift to a class, and for the reasons and on the authorities therein stated it must be determined that George Levy is entitled to share in the gift to the children of his mother.
The practical result of the application of these principles is that testator’s property vests one-half in his widow and one-twelfth each in Rosamonde Polon, Millicent Polon, Constance R. Raywid, Joy Raywid, Audrey Levy and George Levy.
Proceed accordingly.