Opinion
June, 1934.
Present — Lazansky, P.J., Kapper, Hagarty, Carswell and Tompkins, JJ.
Resettled decree of the Surrogate's Court of Rockland county modified by striking out the provision that the corpus of the fund given in trust under "Paragraph Second-A" belongs to the husband of the testatrix, and providing in lieu thereof that upon his death the remainder of the corpus of the trust fund, if any, passes under the laws governing intestacy, and as so modified unanimously affirmed, with costs, payable out of the estate, to each party filing a brief. Read in the light of the foregoing absolute gift of $2,000, the testatrix's directions to make the income of the balance and, in certain contingencies during his lifetime, the corpus itself, available to her husband, Ira Ulman, clearly show that she did not intend an absolute gift of the trust fund to him; so that the remainder, if any, upon his death, passes under the laws governing intestacy, for there is no testamentary disposition thereof. We are also of opinion that such trusts as are created by the third paragraph of the will do not violate the rule against perpetuities. ( Matter of Horner, 237 N.Y. 489; Matter of Trevor, 239 id. 6, 15.)