In re the Construction of Will of Schneider , 24 Misc. 2d 343 ( 1960 )

Maximillian Moss, S.

The trustees seek a construction of testator’s will insofar as it affects the right of distribution to testator’s daughters, Silvia and Loretta, of a portion of the corpus of the trust created for the benefit of the widow added on her death to the trusts for the two daughters.

The will creates three trusts each comprising one third of the- residuary estate, one for the benefit of the' widow, one for Silvia and one for Loretta. Pursuant to 1 ‘ Item 5 ” of the- will, the income of the trust for the widow was to be paid to her for life and on her death one half of the corpus was directed to he added to the trust created for Silvia’s benefit under “ Item 6 ” and the other half to the trust for Loretta created under ‘ ‘ Item 7.” “Item 5” specifically directs that on the death of the widow the income and principal of the portion of her trust directed to be added to the trust for Silvia shall be paid to her ‘ ‘ in the portions and at the ages as set forth in ‘ Item 6 ’ hereof. ’’ Identical language is used in directing the addition of one half of the widow’s trust to Loretta’s trust except that such trust is referred to as “Item 7.” The provisions of the trusts for both daughters direct that they shall be entitled to receive designated percentages of principal of their respective trusts on attaining specified ages. The widow died January 31, 1959, whereupon her trust terminated and one half of the principal thereof become payable to Silvia’s trust and the other half to Loretta’s trust. At the widow’s death both daughters had attained the ages when they became entitled to receive 50% of the principal amount of their respective trusts. Since “ Item 5 ” of the will directs that the income and principal of the portion of the widow’s trust shall be payable in accordance with the provisions creating the trusts for Silvia and Loretta, they are each presently entitled to distribution of 50% of the principal of the widow’s trust added to their respective trusts. It is of no consequence under the provisions of Items “ 5 ”, “ 6 ” and “ 7 ” that the daughters had attained the specified ages prior to the death of the widow. Settle decree on notice.