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This petition was brought before the Surrogate’s Court, Kings County to prove the last will and testament of AAC, and for a determination as to the validity, construction or effect of the disposition of property contained in the said last will and testament of the decedent.
The testator was a physician. He made a holographic will which was admitted to probate. By the decree, all questions of construction proffered by the petitioners and the fixation of the fees of the special guardians were reserved for future determination.
As maintained by the two special guardians, the Court found no difficulty in upholding the validity of the testator’s testamentary scheme. Although inartistic in form, the testator’s intentions in the will were clear.
Under the will, the testator stated that if he is survived by his wife, all his ‘earthly possession to her without limitations whatsoever goes to her, and that in the event he outlives her, his estate shall be disposed of as follows: stating that his estate was worth over $100,000, directing the ‘administrators’ of his estate, later naming his two brothers-in-law as ‘executors and administrators,’ to pay all funeral and entombment expenses and all legitimate obligations outstanding; and provisions for the use and sale of his residence, investment of estate funds, payment of annuities to his children, distribution of the whole estate to them or their children, and educational benefits to them, subject to various conditions.
On 24 January 1954, the testator died and was survived by his four children, 24, 22, 19 and 16 years old respectively at the time. The three oldest children are married.
According to the Court, the will must be construed as creating a single trust of the decedent’s entire net estate, both real and personal, to be held until the youngest child, AB, becomes 22 years of age, that is, 29 July 1960, or his earlier death. While the alternative was not specified in the will, it is supplied by law; thus, avoiding invalidity of the trust by reason of a fixed termination date. This is pursuant to the doctrines elucidated in the case of the court in the cases of Crooke v. County of Kings, 97 N.Y. 421; Matter of Innerfield’s Estate, 153 Misc. 706, 276 N.Y.S. 63; Matter of Denniston’s Estate, 157 Misc. 80, 282 N.Y.S. 900; In re Smith’s Will, Sur., 149 N.Y.S.2d 856; In re Ayres’ Will, Sur., 76 N.Y.S.2d 897; and Matter of Mitchell’s Estate, 206 Misc. 321, 132 N.Y.S.2d 292. The court also held that the insertion of the date “29 July 1960” was merely to indicate the date on which the youngest child would attain his twenty-second birthday and not to fix a date for the termination of the trust or that it was, in all events, to continue until that time, and any unmarried children may live in the residence mentioned in the will sharing the fixed charges and maintenance expenses of the property during the continuance of the trust or until the real property is sold. The fact that now only one child, the youngest, is unmarried and cannot reside alone in the house and pay its expenses does not in any way invalidate this provision. As explained by the testator in his will, he gave only his unmarried children the right to occupy the residence because he did not want any child of his to be burdened by a brother-in-law or a sister-in-law. Indeed, the petitioners may question the wisdom of this provision, but, even so, the Court may not substitute its judgment for the clear direction of the testator, as held in the cases of Matter of Watson’s Will, 262 N.Y. 284, 186 N.E. 787; Matter of English’s Will, 275 App.Div. 148, 88 N.Y.S.2d 687, affirmed 300 N.Y. 644, 90 N.E.2d 497; and Matter of Jacobs’ Will, 244 App.Div. 161, 280 N.Y.S. 1, modified 269 N.Y. 588, 199 N.E. 685. Nonetheless, the will did not preclude an amicable arrangement whereby the unmarried son would reside in the premises together with a married brother or sister, the former paying a proportionate share of the expenses described in the will and the latter paying to the estate a reasonable rental.
As directed in the will, during the continuance of the trust, each child under 22 years of age is to receive $75 per month until he or she reaches that age, payable out of income and, if necessary, principal. In addition, each child was entitled to receive $1,000 a year for four years of college education towards tuition fees and board and $1,500 a year for four years of post-graduate professional education, provided the latter was undertaken within one year after graduation from college, also payable out of income and, if necessary, principal and cease when the trust terminates. Upon termination of the trust, upon the youngest child reaching the age of 22 or his earlier death, the estate is to be distributed equally to the testator’s four surviving children, the issue of any predeceased child to take the share of their parent. Thus, the present grandchild of the testator and any grandchildren born before termination of the trust have contingent remainder interests, as held in the Matter of Cortright’s Estate, 200 Misc. 281, 102 N.Y.S.2d 773.
If the income of the trust estate is in excess of the required payments as aforesaid, since there is no disposition of the surplus and no direction for accumulation of income, the same is distributable equally to those presumptively entitled to the next eventual estate, the testator’s four children, and, should any one die before the termination of the trust, their descendants if any, per stirpes. The share of a child, during minority, of such excess income may be accumulated.
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