In re the Estate of Stern , 1961 N.Y. Misc. LEXIS 1974 ( 1961 )

g. gAMUEL Di Falco, S.

In this proceeding to settle his intermediate account the trustee requests the court to determine the meaning and legal effect of certain language used by the decedent in his last will and testament.

The will which was handwritten by the testator gives the decedent’s entire estate to his daughter Helen but by subsequent language cuts down this outright gift and in effect creates a trust of his entire estate with directions to pay the income to his daughter and the principal of the trust to the said daughter as follows: u at her twentieth year one-tenth of the estate shall be paid to her, at her twenty-fifth year an additional one-tenth and immediately every five years one-tenth, she shall under no circumstances be able to dispose of whatever may be the balance at any time.”

The only question presented for determination at this time is the method and computation to be used to effectively carry out the distribution of the trust principal under the directions given by the testator. The intent of the testator is clear. It was to distribute the principal of the trust fund in 10 equal payments to his daughter at 5-year intervals starting on her 20th birthday. To effectuate this intent and to take care of any possible increase or decrease of the trust assets during the term of the trust, the court must place a practical construction on the language used by the testator. (Matter of Bouverie, 22 Misc 2d 701; Matter of Baumann, 64 N. Y. S. 2d 373; Matter of Jacob, 165 Misc. 280; Matter of Rosenthal, 155 Misc. 295; Matter of Van Hogendorp, 110 N. Y. S. 2d 579; Matter of Magill, 10 Misc 2d 209.) The court, therefore, directs that the principal payments to the income beneficiary be computed on the current value of the trust at the time each payment becomes due and that such payments be made in as nearly as possible equal installments that will exhaust the trust upon the completion of the 10th payment of principal to the said beneficiary. (Matter of Elliott, 70 N. Y. S. 2d 826; Matter of Bouverie, supra.)