145 N.Y.S.2d 727
1 Misc.2d 440
In re WELSH’S WILL.
Petition of the First National City Bank of New York,
successor by merger of the Peoples Trust Company, to render
and settle its account as trustee of the trust created for
the benefit of Howard F. Welsh by the last will and
testament of Annie P. Welsh, late of the County of Kings, deceased.
Surrogate’s Court, Kings County.
Oct. 10, 1955.
Wingate & Cullen, Brooklyn (Conrad Saxe Keyes, Rooklyn, of counsel), for petitioners.
Francis F. Welsh, Montclair, pro se and for respondent, Elmira V. Welsh.
Lott & Livingston, Brooklyn, for respondent, Brooklyn Home for Children.
Merchant, Olena, Buck & Santomenna, New York City, for respondent, New York Congregational Christian Conference, Inc.
Murray & Manson, Brooklyn, for respondent, Orphan Asylum Society of the City of Brooklyn.
A New York Probate Lawyer said in a proceeding to probate the last will and testament of the deceased, which was contested by the three respondents, and which resulted in the will being admitted to probate after a compromise pursuant to which each of the four contestants and the infant respondent would receive $2,000 upon the death of the life beneficiary of the residuary trust created by the will, the said life beneficiary and the Attorney General appeal from so much of an order of the Surrogate’s Court, Kings County, dated May 6, 1960, made pursuant to section 231-a of the Surrogate’s Court Act, as fixed $2,500 as the compensation for the four contestants’ attorneys, the respondents ‘for the legal services rendered by them which were useful to the court and of substantial benefit to this estate.’
In the opinion of the Court, the legal services rendered by the contestants’ attorneys benefited only the contestants, and not the estate; and, hence, the attorneys must seek compensation from their clients personally.
A New York Estate Lawyer said that an order modified on the law and the facts by striking out the third decretal paragraph fixing the compensation of said attorneys at $2,500, and by substituting therefor a provision denying any compensation to them out of the testator’s estate. As so modified, the order is affirmed without costs. Findings of fact implicit in the order and in the opinion or decision of the Surrogate, insofar as such findings may be inconsistent herewith, are reversed and new findings are made as indicated herein.
Bronx Probate Lawyers said in another case, a final accounting of a trust created for the executor under clause Ninth of testatrix’ will, a construction is sought as to the disposition of the remainder thereof. Testatrix died on March 27, 1918. Under the aforesaid clause testatrix devised two parcels of realty in trust, with power to convert the same into cash, and to divide the same into two equal parts: ‘to pay the income of one of said parts to him, for, and during the term of his natural life, and after his death, to pay the income of said part to the respondent. Testatrix then provided that the income of the other part be paid for life, then to his issue until 21 years old and then the principal to them in equal shares, and if there be no issue, the income to be paid to executor’s wife, for life, ‘and upon her death, the said part and all increments thereof are to be disposed of as directed in the tenth clause of this, my last Will and Testament.’ The income of the trust was paid to him for life and thereafter to executor, who survived him and died on January 7, 1954. The trust still subsists as he died without issue but was survived by his widow, who was the contingent secondary beneficiary of his trust.
Brooklyn Probate Lawyers said the Tenth clause of testatrix’ will disposed of her residuary estate, which she gave in trust for the lifetime benefit of a niece, and the remainder was given in equal shares to four charitable organizations. The niece predeceased the testatrix.
The only child of the trustee, contends that there being no provision for the disposition of his father’s trust after the death of the executor, the gift lapsed and there was an intestacy, which should be paid to the natural objects of the testatrix’ bounty, the heirs, and that upon the death of both trustee and executor, he was left as the sole heir and should receive such part. The probate proceedings however disclose that the two were step-sons of the testatrix.
It is urged that under the principle declared in a case that since there is an unrestricted gift of income without limitation of time and no express disposition of the principal, the corpus of the trust vested in the income beneficiary. A similar argument was advanced in another case and rejected as the instrument under construction contained a residuary clause, under which it was held that the trust corpus was payable to the residuary legatee.
In the instant case no intestacy of the remainder of the trust follows because of the failure to provide for its disposition within its own clause. Clause Tenth–the residuary clause–is broad enough to embrace within it the said remainder, and the will is so construed.
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