Opinion
March 31, 1966
Order, entered December 13, 1965, unanimously reversed and vacated, with $30 costs and disbursements to all parties filing briefs, payable out of the trust estate; motion to vacate order entered October 14, 1965 appointing a Referee, and for other relief, granted to the extent of vacating the reference and otherwise denied; and matter remanded to Special Term for such proceedings as may be deemed proper and advisable to the end that a final order be entered settling the account of the trustee and directing distribution of the trust principal. Under the circumstances, it was an improvident exercise of discretion to order a reference. (See Matter of Wilder v. Straus-Duparquet, 5 A.D.2d 1; Wolfson v. McGraw Co., 18 A.D.2d 905; Sheehan v. Allen, 19 A.D.2d 595.) The objections filed by the guardian ad litem merely purport to raise a question with relation to the identity of the distributees of the trust remainder which is payable to the "child or children of J---- N---- Forbes" and their issue. Since such question may be readily disposed of at Special Term, there was "no justification in protracting the proceedings as is likely to occur on a reference, nor in imposing the attendant expense on the parties." ( Matter of Wilder v. Straus-Duparquet, supra, p. 2.) On the basis of such facts as appear in the record, it must be conceded that the particular provisions of the trust agreement had reference to the child or children of John M. Forbes, the deceased husband of settlor's aunt (brother-in-law of settlor's mother) and that such was the intent of the settlor. On the posture of the present record, however, we have concluded that it is inappropriate for this court to reach and summarily dispose of the issue of construction without affording the parties the opportunity of taking such proceedings at Special Term and presenting such evidence there as they may deem proper and advisable.
Concur — Botein, P.J., McNally, Stevens, Eager and Steuer, JJ.