Opinion
December 18, 1961
In consolidated proceedings for the settlement of the account of the trustee under the will of Frederick L. Conklin, deceased, and for the judicial construction of paragraph "Fifth" of said will, Kenneth Matteson, as administrator of the estate of Cecile Laura Matteson, deceased, appeals, as limited by his brief, from so much of a decree of the Surrogate's Court, Dutchess County, entered May 4, 1961, as construes said paragraph and determines that Cecile, testator's niece, had no right, title or interest in the trust estate created by said paragraph; that appellant, her administrator, is not entitled to the distribution of any part of such trust; that upon testator's death the principal of such trust vested indefeasibly in testator's brothers, Jay and Lee (Lee being Cecile's father), subject only to the life estate of the testator's widow Myrtle; and that one half of such principal is distributable to the estate of Lee. By paragraph Fifth of testator's will the residuary estate was given in trust to pay half the income to testator's widow for life, to pay one quarter of the income to each of testator's two brothers, Jay and Lee, and, in the event of their decease, to pay such income to their widows during the life of testator's widow. At the death of the testator's widow, half of the trust principal was to be paid to one brother (Jay) or his widow and their children, to be equally divided between them, and the other half to another brother (Lee) or his widow and their daughter (Cecile Laura Matteson), to be divided equally between them. Lee survived the testator but predeceased the testator's widow, Myrtle. Lee's daughter (Cecile) survived the testator but predeceased her father Lee. Decree, insofar as appealed from, affirmed, with costs payable to all parties filing briefs on the substantive question of construction of paragraph "Fifth" of testator's will, payable out of Lee's remainder interest.
In my opinion, paragraph Fifth of the will should be construed to mean that, while upon testator's death his brother Lee obtained a vested interest in the trust, such interest was not indefeasibly vested; and that it was divested when he died before the testator's widow (cf. Matter of Larkin, 9 N.Y.2d 88; Matter of Gulbenkian, 9 N.Y.2d 363; Lyons v. Ostrander, 167 N.Y. 135). [ 30 Misc.2d 495. ]