Opinion
February 11, 1969
Coulter, Fraser, Carr, Ames Bolton for First Trust Deposit Company, as trustee, petitioner.
Anthony J. Falcone, guardian ad litem of Brenda S. Roffe and another, infants.
The last will and testament of the testatrix provides that her estate should be held in trust, and directs that the trustee pay from the rents, income and profits, and/or principal of the trust fund the sum of $75 per month to one life beneficiary and, at his death, to continue said payments to one Ronald Roffe and, at his death, to divide the remainder of said trust fund equally between the issue of said Ronald Roffe. The trustee has carried out the provisions of the trust, and the first life beneficiary has died and the trustee has been continuing, in accordance with the terms of the will, to pay the sum of $75 a month to said Ronald Roffe, who is still living. The said Ronald Roffe presently has issue who can readily be identified. These are his living children.
For some period of time the net income from this trust has been in excess of $75 per month. The question before us is what the trustee should do with this excess over the amount of $75 per month.
The Court of Appeals has held, in United States Trust Co. v. Soher ( 178 N.Y. 442), in applying then section 53 (subsequently § 63) of the Real Property Law, that surplus income passes as in intestacy to the next of kin of the decedent, where it is not possible to identify the persons presumptively entitled to the next eventual estate.
Every presumption is against intestacy if it can be avoided by a construction which is reasonable and consistent with the general scope and provisions of the will. ( Matter of Fabbri, 2 N.Y.2d 236; Matter of Warren, 11 N.Y.2d 463; Matter of Collins, 13 N.Y.2d 194.) The presumption exists that the children of Ronald Roffe, now living, will continue to live until the termination of the trust ( Matter of Childs, 207 Misc. 1126), and therefore they are the persons presumptively entitled to the next eventual estate. If additional issue are born to Ronald Roffe, they, too, will share in the next eventual estate. ( Matter of Becker, 47 Misc.2d 443.)
We hold that the children of Ronald Roffe are the persons entitled to receive the excess income over and above the amount of $75 per month. In the event more issue are born to said Ronald Roffe in the future, they will also share in this excess.