Citation Numbers: 9 Misc. 2d 114
Judges: Moss
Filed Date: 11/15/1957
Status: Precedential
Modified Date: 2/5/2022
In this executors’ accounting proceeding the court is requested to construe the will of Benjamin Milberg, deceased, to determine whether the increments accrued on principal devised and bequeathed to his grandchildren is shared equally among five of them born prior to the execution of his will, or among them and two other grandchildren born after its execution. The grandchildren are all infants. The special guardian for those first mentioned contends that under the terms of the will only his wards are devisees and legatees of the true residuary estate and entitled to share in the increments. The court is unable to reach the same conclusion for the reasons which follow.
A careful study of testator’s testamentary scheme reveals that whatever remains of his estate after payment of funeral and administration expenses, debts and death taxes, and delivery of certain articles of personal property as defined in articles Ninth and Eleventh, shall be divided into fractional shares as follows:
Six per centum to individuals named in articles Fourth to Eighth inclusive and to charities named in article Ninth, in various specific amounts, with directions that if such amounts in the aggregate should exceed six per centum there shall be a prorata abatement of legacies necessary as to reduce them, for which testator provides a formula.
Sixty-four per centum is to be divided as indicated in article Eleventh and Twelfth. Though separately numbered these two articles and article Thirteenth may be considered as one. The first gives ‘ ‘ all the rest, residue and remainder of my estate * * * in the amounts and to the persons set forth below ’ ’; and the second gives “ of said rest, residue and remainder of my property a share equal in value to sixty-four (64%) percent of my estate, to my trustee hereinafter mentioned ”. (Emphasis supplied.) It creates a trust directing the trustees to pay the income therefrom to his daughter, Eleanor Grossman, authorizes him to invade the principal for her benefit if necessary to make up the deficiency of a stated amount and to increase the amount in case of her illness, etc. Finally it directs that the remainder be paid to her or her issue surviving her on the happening of future eventualities with which we are not presently concerned.
The balance of 30% is disposed of by article Thirteenth which devises and bequeaths “ all the rest, residue and remainder of my property, not mentioned in Article ‘ Twelfth ’ to my grandchildren,” naming the five horn prior to the execution of the will.