Judges: Cox
Filed Date: 8/22/1962
Status: Precedential
Modified Date: 10/19/2024
In this proceeding for the settlement of the final account of the trustee the reports of special guardians present for determination two questions involving construction of provisions of the will disposing of the remainder of the residuary trust. The testator left his residuary estate in trust for the benefit of his widow, his nephew and the latter’s wife. The testamentary provisions particularly pertinent to the construction problems read as follows: ‘ ‘ fourth :- I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal and wheresoever situated, of which I shall die seized or possessed or to which I may be entitled at the time of my decease, unto The Farmers’ Loan and Trust Company * * * in trust * * * during the lifetime of my said wife, Valerie Eugenie Worthington, and to apply eleven twelfths of said rents, issues and profits to the use of my said wife during her life, and the remaining one-twelfth of said rents, issues and profits to the use of my nephew, William E. Austin * * * and his wife, or the survivor of them. If at any time
The legatee Marie Papin Felu survived the testator but died prior to the termination of the trust. The testator’s nephew William E. Austin and the latter’s wife also survived the testator and predeceased the widow.
The special guardian representing the persons entitled to the estate of Madam Felu contends that the legacy bequeathed to her vested in her upon the testator’s death. A remainder gift to a named legatee who was in existence at the date of the testator’s death imports immediate vesting (Matter of Ablett, 3 N Y 2d 261, 271; Matter of Cummings, 11 Misc 2d 1060; Matter of Green, 160 Misc. 490; Matter of Foster, 174 Misc. 933). The contention that the testator’s direction that lapsed legacies be added to the general remainder constitutes a substitutionary gift of this legacy presumes the very question at issue by classifying this legacy as one that has lapsed. The position of the special guardian is sustained.
With respect to the disposition of the shares which would have been employed to purchase annuities for the nephew and his wife, it may be assumed that, were the testator able to express a