Braun's Estate, In re

• Decision Date: 25 July 1962
• Citation: 36 Misc.2d 692,233 N.Y.S.2d 398
• Parties: In re BRAUN'S ESTATE. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 398

233 N.Y.S.2d 398

36 Misc.2d 692

In re BRAUN'S ESTATE.

Surrogate's Court, New York County.

July 25, 1962.

Helen M. Clark, petitioner, pro se.

Harvey Glasser, New York City, for Valeria Rolanova, respondent.

Ellis, Stringfellow & Patton, New York City, for Marble Collegiate Church and American Foundation of Religion and Psychiatry, respondent.

Samuel M. Blinken, New York City, special guardian for Peter Porubska, respondent.

JOSEPH A. COX, Surrogate.

The testator disposed of his estate by a will which created three trusts for the respective benefits of his sister Valeria, his sister Magdalena and his nephew Peter. These sisters are the distributees of the testator. At the date of the will all of these beneficiaries resided in Czechoslovakia and the will contains their respective residence addresses in that country. The testator's direction with respect to each trust was that the trustee pay over twenty dollars monthly for the purchase of food, necessaries or articles to be sent to the beneficiaries. The language of the trust for the benefit of Valeria reads, insofar as pertinent, as follows:

'1--That one-third (1/3) of the assets of my 'Residuary Estate's be held in trust for my sister VALERIA ROLANOVA, Hviezdoslavovo Namesti, c. 15/V, BRATISLAVA, CZECHOSLOVAKIA, and I direct my Trustee to pay over the sum of Twenty ($20.00) Dollars monthly of the income (and principal if required) to an agency or organization, of my Trustee's election to send to my sister, above named, food, necessaries or articles (both or all) requested by my sister so long as she shall live, except in the event she fails to receive the above said packages or no longer wishes the said packages containing the above mentioned sent to her as above directed, then I direct my Trustee to pay over the remainder of the said Trust to the then existing Trusts created by my Will, if in the event all said Trusts have terminated, then I direct that the remainder of the said Trust shall be equally divided, share and share alike, between the MARBLE COLLEGIATE CHURCH, located at 1 West 29th Street, New York City, and the AMERICAN FOUNDATION OF RELIGION AND PSYCHIATRY. * * *'

Valeria is now a resident of the United States and she asks that the testamentary provision for her benefit be construed as entitling her to the entire residuary estate. No purpose will be served by an attempted analysis of the arguments in support of this broad contention and it is sufficient to say that the arguments made do not find support in the will. The contention that the will creates annuities and not trusts is rejected inasmuch as all the elements necessary to create trusts are in this will (Matter of Gargyan's Estate, 27 Misc.2d 137, 211 N.Y.S.2d 232; Matter of Purvey, 34 Misc.2d 913, 229 N.Y.S.2d 180; Matter of Gantz's Estate, 33 Misc.2d 143, 224 N.Y.S.2d 335).

The primary question is to determine the effect of Valeria's removal from Czechoslovakia to the United States for, if the testator's purpose was to provide her with some subsistence only because she was behind the Iron Curtain, the fundamental purpose of the trust has failed. It is asserted by one of the remaindermen that this is the fact and the trust has terminated but the court does not read this intention into the will. The testator was confronted with a difficult problem inasmuch as he knew, or would be chargeable with knowledge, that money payments could not be transmitted to Czechoslovaka and any monetary bequests to his immediate relatives would not in fact benefit them (Matter of Braier's Estate, 305 N.Y. 148, 111 N.E.2d 424; Matter of Geiger's Estate, 7 N.Y.2d 109, 195 N.Y.S.2d 831, 164 N.E.2d 99). The will was an attempted solution of this problem and an effort to benefit his relatives to the extent practicable under the restrictions imposed upon him. There is no basis to read into this will an intention on the testator's part to bequeath his sister only packages of food stuffs and to deprive her of any benefit in the form of cash money. In view of the limited size of this estate, it could well have been within the contemplation of the testator that the trust funds would be consumed by his relatives and the remaindermen would receive nothing. It would not be consistent with the plain purpose of the testator if his sister were to be deprived of any benefit and the...