Opinion
November 3, 1961
Ruskin Ruskin for trustee, petitioner.
Gerdes, Montgomery Miller ( Lester Nelson of counsel), for Katharine C. Hood, respondent.
The successor trustee seeks construction of the testatrix' will in the proceeding judicially to settle his final account in order to determine the disposition of the remainder of the principal of a trust of which a niece, Anna Newton Lewis, was the life beneficiary. The court is further required to fix the compensation of the attorneys for the successor trustee and determine the amount to be retained by the successor trustee to meet possible tax contingencies.
Under article "VI" of the will, testatrix created a trust of one half of her residuary estate and provided that upon the death of said niece, Anna Newton Lewis, the corpus of the trust was to be divided in equal shares between the life beneficiary's issue, Lucy Gagor Lewis Schenk, or her issue, and Henry Buell Lewis, or his issue. The issue of each named person was to "collectively take one share."
Anna Newton Lewis died leaving no issue. It is now urged by the successor trustee that the share of the remainder which would have been payable to the issue of the life beneficiary augments the shares of the other remaindermen.
The testatrix failed to make any disposition of the share of the remainder intended for the issue of Anna Newton Lewis. The court cannot create a testamentary disposition which is not expressed or readily to be implied ( Matter of Hoffman, 201 N.Y. 247), and it has no power to change the clear and definite words of this will ( Matter of Bisconti, 306 N.Y. 442, 445).
It is a long-established rule of construction that a residuary gift to the issue of a life tenant who dies without issue devolves in intestacy provided there is no substitutional gift ( Matter of Kane, 161 Misc. 767, affd. 251 App. Div. 710; Matter of Cary, 25 Misc.2d 244). The share in remainder intended for the issue of the niece, Anna Newton Lewis, does not augment the shares of the other remaindermen ( Wright v. Wright, 225 N.Y. 329; Matter of Forde, 201 Misc. 198, affd. 281 App. Div. 680).
The fees of the attorneys are fixed and allowed in the sum of $1,500 for all services to and including distribution. They will also be allowed their disbursements in the sum of $25.
The successor trustee will submit an affidavit to establish the amount, if any, necessary to be retained for possible future tax contingencies. The court on the submission of the decree will insert in the decree such sum as may be then retained.