In re the Estate of Bauer , 19 Misc. 2d 707 ( 1959 )

S. Samuel Di Falco, S.

In this application to settle the final account of the executor, instructions are requested. Testatrix created a residuary trust in which she named her son primary income beneficiary and his “widow” secondary income beneficiary. Upon their death, the remainder is to go to the then surviving children and their issue. In the event of the death of the husband, leaving no widow, the income is to be paid to his children and their issue with remainder payable to said children or the issue of deceased children upon attaining the ages of 30, 35 and 40 respectively. In the event that at any time prior to the distribution of the remainder there shall not be living any children of testatrix’ son or their issue, the remainder is to pass to certain persons named in paragraph 5 (E) of the will or their issue.

The son has one child now living, a daughter aged 18. He and his wife have executed releases of any and all interest they may have in income or principal or in anywise affecting the estate. Petitioner asks that he be appointed trustee of the residuary trust to pay the income to his daughter. It is urged on behalf of the daughter that the remainder is accelerated and that she should receive the entire corpus at this time. This, of course, cannot be done in view of the contingent remainder interests under the will, and since, although the interests of petitioner and his wife have been extinguished, they still remain as measuring lives of the trust.

Any question as to the validity of the secondary trust based on the life of the widow, or as to the validity of the alternative provisions of paragraph 5(E) are at this time academic and do not require determination. (Matter of Mount, 185 N. Y. 162.)

The court grants the prayer of petitioner that he be appointed trustee and authorizes him to continue the trust to pay the net income to the person or persons presumptively entitled to the next eventual estate. (Real Property Law, § 63; Matter of Harteau, 204 N. Y. 292.) Petitioner’s daughter is presently the person presumptively entitled to the next eventual estate.

The reasonable compensation of the attorney'for petitioner is fixed and allowed in the amount requested.

Submit decree on notice accordingly.