Peters' Estate, In re

• Decision Date: 09 January 1962
• Parties: In re ESTATE of Harry PETERS. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 305

224 N.Y.S.2d 305

32 Misc.2d 1004

In re ESTATE of Harry PETERS.

Surrogate's Court, New York County.

Jan. 9, 1962.

Seymour J. Wilner, New York City, for petitioner Sylvia Rosner, executrix.

George J. Todaro, New York City, Special Guardian for respondent Robert F. Peters, infant.

L. Chester Glaser, New York City, for respondent Rubin Berman, trustee.

Samuel M. Blinken, New York City, Special Guardian for respondents Warren Max Mosner and others, infants.

S. SAMUEL DI FALCO, Surrogate.

The executrix in this proceeding to settle her account has posed several questions as to meaning, validity and effect of Paragraphs Second, Fourth and Seventh of the decedent's will. These questions arise mainly by reason of acts taken by the testator after the execution of his will and by reason of his lack of knowledge of certain facts at the time he drew the will.

In Paragraph Second of the will, decedent provided:

'I give, devise and bequeath the sum of One Thousand ($1000.00) Dollars to my beloved daughter, SYLVIA ROSNER, * * *, or her heirs. It is my desire that this sum be paid to her out of the butcher store business which I own * * *.'

In Paragraph Third of his will, decedent gave and bequeathed the said butcher store business to his two sons. However, some four months after the execution of the will, the decedent sold the butcher store business to his two sons and a question is now presented as to whether or not such sale has defeated the bequest. The bequest in the form made presents almost a classic example of a demonstrative legacy. As was stated by the Court of Appeals in Crawford v. McCarthy, 159 N.Y. 514, at page 519, 54 N.E. 277: 'A demonstrative legacy is a bequest of a certain sum of money, stock or the like, payable out of a particular fund or security. * * * A demonstrative legacy partakes of the nature of a general legacy by bequeathing a specified amount and also of the nature of a specific legacy by pointing out the fund from which the payment is to be made, but differs from a specific legacy in the particular that, if the fund pointed out for the payment of the legacy fails, resort may be had to the general assets of the estate.' (See also Matter of Cameron's Estate, 278 N.Y. 352, 16 N.E.2d 362, 117 A.L.R. 1333). The court finds, therefore, that the legacy has not been defeated by the subsequent sale of the business and that the said legacy is payable out of the general assets of the estate.

In Paragraph Fourth the decedent created three trusts of one piece of real property which was to be held by his trustees for the benefit of his three children and three named grandchildren under the following terms and provisions:

'* * *, to pay the net income to each of my children for whom such trust is held during the lifetime of such child and upon the death of each of the said children, my trustee shall continue to collect the income from the said property as aforementioned and to hold same in trust for my grandchildren, WARREN MAX ROSNER, KENNETH LLOYD ROSNER and LAURIE ANN ROSNER, * * *.

'It shall be solely within the discretion of my said trustee to pay over from the trust fund herein such sums as he shall deem necessary for the education and for any necessary medical care for my said grandchildren.

'When each of said grandchildren shall reach the age of twenty-one (21) years, my trustee shall transfer and assign to him or her at such time an individual one-third (1/3) interest in and to the said premises. If the said property shall have been sold at that time, then he or she shall receive one-third of such cash at such time.

'In the event that any of my grandchildren shall die before he or she shall reach the age of twenty-one (21) years, leaving him or her no issue surviving, then it is my desire and wish that upon his or her death, my surviving grandchild or grandchildren shall become the owner of the property contained in this trust fund.

'I hereby give my trustee the sole and full right to sell or otherwise dispose of any real and personal property and to exercise his sole judgment and discretion concerning same.

'It is understood that my grandchildren are not to take under this Estate until and unless any of my children shall predecease them.'

The first question raised under this paragraph is whether the trust can be invaded at this to provide for the education and necessary medical care of the grandchildren. The decedent's three children are alive and the three named grandchildren, the children of Sylvia Rosner, are also alive. This question must be answered in the negative as the intent of the testator is plainly set forth. It is clear that the testator intended to provide a separate trust for each of his children during their respective lives, to continue the said trusts during the minority of his three grandchildren and to make distribution of the trusts to each of his grandchildren when they became of age. Lest there by any mistake about this...