Opinion
August 1, 1961
Appeal from a decree of Surrogate's Court, Ulster County. Testatrix by her will created a life estate for her brother-in-law Ralph Davis Clearwater and upon his death directed the trustees "to treat the balance of said trust * * * as a part of my residuary estate, and distribute the same pursuant to the residuary clause" of the will. The residuary was given by the will to Thomas Hoffman Clearwater, who was the son of the life beneficiary Ralph. Decedent died in 1937; Thomas, the residuary beneficiary, died in 1950, leaving a will in which Thelma Clearwater is executrix. His father, the life beneficiary, did not die until 1959. The Surrogate held that on the death of testatrix the remainder of the life trust vested in the residuary Thomas who was then alive. The essential basis of the appellant's argument for intestacy of the remainder of the life trust is that the failure "to name a remainderman in existence at date of testator's death imports a failure of immediate vesting". But the direction in the will that the remainder of the trust be treated "as a part of my residuary estate"; and the nomination of Thomas as beneficiary of all of the residuary amounts to the same thing. The will in these respects must be read in context, and thus read it is governed by the rule that a future estate is vested when there is a person in being who would have an immediate right to possession on the determination of all intermediate or precedent estates. (Real Property Law, § 40; Stringer v. Young, 191 N.Y. 157; Matter of Weaver, 253 App. Div. 24, affd. 278 N.Y. 605. ) The failure of Thomas himself to survive until the termination of the life estate did not affect the vesting ( Fulton Trust Co. v. Phillips, 218 N.Y. 573; Connelly v. O'Brien, 166 N.Y. 406). Decree affirmed, with costs to each party filing a brief payable from the estate. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur. [ 23 Misc.2d 232.]