Patterson's Estate, In re

• Decision Date: 11 February 1965
• Citation: 257 N.Y.S.2d 742,45 Misc.2d 797
• Parties: In re ESTATE of Morehead PATTERSON. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 742

257 N.Y.S.2d 742

45 Misc.2d 797

In re ESTATE of Morehead PATTERSON.

Surrogate's Court, New York County.

Feb. 11, 1965.

Medina & Miller, New York City, for administratrix of estate of Rufus Lenoir Patterson IV.

Milbank, Tweed, Hadley, & McCloy, New York City, for Herbert Parsons Patterson.

Emerson L. Simon, New York City, special guardian ad litem.

Hughes, Hubbard, Blair & Reed, New York City, for Casimir de Rham, Jr.

Rogers, Hoge & Hills, New York City, for petitioners.

JOSEPH A. COX, Surrogate.

In this construction proceeding the court is asked to determine whether the remainders of three residuary trusts vested in the primary remaindermen who are named in the testator's will or, by reason of the death of a remainderman during the trust terms, his estate has no present interest in the trust principals. A corollary question arises as to whether the testator's 'heirs at law', referred to in Article Eleventh of the will, are to be ascertained as of the date of the testator's death or are to be ascertained as of the termination date of each trust.

By subdivisions (b) and (d) of Article Eighth of his will the testator established two trusts for the life of his wife with the income from each trust payable to her for life. In respect of each trust the testator directed that, upon his wife's death, his trustees 'distribute and pay over one-half (1/2) of the trust corpus to my son, HERBERT PARSONS PATTERSON, or if he be not then living, to his issue per stirpes, and distribute and pay over the remaining one-half (1/2) of the trust corpus to my grandson, RUFUS LENOIR PATTERSON IV, or if he be not then living, to his issue per stirpes'

In subdivision (f) of Article Eighth of his will the testator established a trust for the lifetime of his mother with the trust income payable to his mother, son, grandson, or their issue, vesting discretion in one of his trustees as to the distribution and allocation of the income among them. The testator directed that, upon the death of his mother, the principal of this trust be divided into two equal parts and distributed as follows:

'(i) One (1) such equal part to my son, HERBERT PARSONS PATTERSON, if he be then living, and if he is not living at such time, to his issue per stirpes.'

'(ii) One (1) such equal part to my grandson RUFUS LENOIR PATTERSON IV, if he be living, or if he is not living at such time, to his issue per stirpes.'

The testator died on August 4, 1962. His wife, son and mother are still living and the described trusts are continuing. On January 17, 1964 Rufus Lenoir Patterson IV, the testator's grandson, died. At the time of his death the said grandson was 19 years of age and without issue. It now becomes necessary to solve the question created by his untimely death without issue in order to fix his estate's tax liability (Matter of Doerschuck's Will, 8 Misc.2d 422, 429, 115 N.Y.S.2d 780, 786; Matter of Lederer's Will, 4 A.D.2d 623, 168 N.Y.S.2d 343).

The quoted portions of this will explicitly condition the remainder dispositions to the grandson of the testator upon his being alive at the termination of the particular trust. Such remainder bequests clearly are contingent upon the survival of the grandson and, by reason of his death prior to the termination of any trust, he acquired no vested remainder interest which would be payable to his estate at a later date (Matter of Urchs' Estate, 39 Misc.2d 186, 240 N.Y.S.2d 467, affd. 20 A.D.2d 291, 247 N.Y.S.2d 263; Matter of Storm's Will, 18 A.D.2d 656, 235 N.Y.S.2d 293; Matter of Burdsall, 128 Misc. 582, 219 N.Y.S. 614, affd. 221 App.Div. 754, 222 N.Y.S. 777). Matter of Krooss, 302 N.Y. 424, 99 N.E.2d 222, 47 A.L.R.2d 894 is without application to the construction of this will for the reasons stated at length in Matter of Urchs (supra).

Article Eleventh of the testator's will reads as follows:

'ELEVENTH: In the event that the whole or any part of my estate shall be or become undisposed of by reason of there being no beneficiary surviving to take the same as directed under the foregoing provisions of this my Last Will, then my executors hereinafter named or the...