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MATTER ESTATE JOHN L. YOUNG (12/16/69)

SURROGATE'S COURT OF NEW YORK, KINGS COUNTY 1969.NY.44002 <http://www.versuslaw.com>; 308 N.Y.S.2d 585; 62 Misc. 2d 86 December 16, 1969 IN THE MATTER OF THE ESTATE OF JOHN L. YOUNG, DECEASED Edward V. Gross for Kings County Lafayette Trust Company, as successor trustee, petitioner. Morgan & Nichols for guardian of David A. La Boyteaux, incompetent trust remainderman. Alexander G. Hesterberg for Public Administrator, as administrator d. b. n. of the estate of Joseph K. La Boyteaux, a remainderman. Harry Grossman, guardian ad litem for testator's intestate distributees. Nathan R. Sobel, S. Author: Sobel


Nathan R. Sobel, S.

Author: Sobel

 Incidental to the trustee's final account, construction is requested of article fourth of testator's will. This particular issue of law recurs with some frequency when the life income beneficiary outlives normal expectancy and survives the remaindermen.

Preliminarily it suffices to note that testator who died in 1901 left all of his estate to nonrelatives. Although married, he had been living apart from his wife and two children, whose whereabouts prior to and since his death have been "unknown". A guardian ad litem represents them in this proceeding.

The main issue is whether a particular remainderman, who predeceased the life income beneficiary or a residuary trust, received under the will a vested remainder interest. Only if he did not, would intestacy result as to such remainder interest and the wife and children take as distributees despite testator's obvious intention to disinherit them. The article requiring construction provides:

"Fourth: I give, devise and bequeath the other one-half of all the rest, residue and remainder of my estate and property, real and personal of every nature and kind wheresoever situated to my Executor in trust to and for the following uses and purposes, that is to say:

"1. In case said Julia McAuley and said Agnes La Boyteaux shall both survive me to invest said one-half of said rest, residue and remainder and to pay the income therefrom to said Julia McAuley during her life and on her death to pay the income therefrom to said Agnes La Boyteaux during her life and on the death of said Agnes La Boyteaux, or if she shall not survive said Julia McAuley, on the death or the latter to pay the principal of said one-half to the descendants of said Agnes La Boyteaux per stirpes or if she leave no descendants to pay said principal to said Emma W. La Boyteaux or to her descendants, if she be dead, per stirpes and if she leaves no descendants to pay said principal to said Joseph K. La Boyteaux and Robert C. La Boyteaux, the descendants of either of them who may be dead to take the share such deceased one would take if living."

The primary income beneficiary died in 1909. Agnes La Boyteaux, the secondary income beneficiary, died in 1968 (67 years after testator), the trust then terminating.

The principal was to be distributed under the terms of the will to the remaindermen in the following order:

(1) Descendants of Agnes;

(2) Emma La Boyteaux;

(3) Descendants of Emma;

(4) Joseph K. La Boyteaux and Robert C. La Boyteaux;

(5) Descendants of Joseph and Robert.

Substitutionary gifts became effective with respect to (1), (2), and (3) above when Agnes (1968) and Emma (1961) both died unmarried and without descendants.

By virtue of such specific substitutionary gifts, the clause of article "fourth" requiring construction in practical effect becomes: [Upon the death of the life income beneficiary] "to pay said principal to said Joseph K. La Boyteaux and Robert C. La Boyteaux, the descendants of either of them ...


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