In re the Construction of the Will of Wagner

New York Surrogate's Court

In re the Construction of the Will of Wagner

20 Misc. 2d 422, 194 N.Y.S.2d 949, 1959 N.Y. Misc. LEXIS 2595

DecidedNovember 19, 1959

StatusPublished

This text of 20 Misc. 2d 422 (In re the Construction of the Will of Wagner) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Construction of the Will of Wagner, 20 Misc. 2d 422, 194 N.Y.S.2d 949, 1959 N.Y. Misc. LEXIS 2595 (N.Y. Super. Ct. 1959).

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Opinion

S. Samuel Di Falco, S.

This is an application for construction of the will instituted on the petition of the administrators of the estate of the decedent’s widow. In article VII (b) of his will the testator left the following instructions concerning the payments to be made to his wife under the trust he had established for her benefit. He there said: “In the event the income to which my wife is entitled under this trust shall be less than $8,000 in any year, then I authorize, empower and direct my Trustees to pay the deficiency out of the corpus to her ’ ’.

The widow died on July 28, 1958. The terminal date of the fiscal year employed by the trustees in the administration of the trust was January 31. It is the position of the petitioners that their intestate’s estate is- entitled to a prorata share of the $8,000 annual payment required under the will for the period commencing on February 1, 1958 and terminating on the date of the death of the life beneficiary. The court concurs in this conclusion which is clearly the mandate of the will and also [423]*423consonant with the provisions of section 204 of the Surrogate’s Court Act directing the apportionment of ‘ ‘ all rents * * * and all annuities, dividends and other payments of every description ” between the holders of successive estates. (Matter of Booth, 105 N. Y. S. 2d 73.)

Submit decree on notice construing the will in accordance with the ruling here made.

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S. Samuel Di Falco, S.

This is an application for construction of the will instituted on the petition of the administrators of the estate of the decedent’s widow. In article VII (b) of his will the testator left the following instructions concerning the payments to be made to his wife under the trust he had established for her benefit. He there said: “In the event the income to which my wife is entitled under this trust shall be less than $8,000 in any year, then I authorize, empower and direct my Trustees to pay the deficiency out of the corpus to her ’ ’.

The widow died on July 28, 1958. The terminal date of the fiscal year employed by the trustees in the administration of the trust was January 31. It is the position of the petitioners that their intestate’s estate is- entitled to a prorata share of the $8,000 annual payment required under the will for the period commencing on February 1, 1958 and terminating on the date of the death of the life beneficiary. The court concurs in this conclusion which is clearly the mandate of the will and also [423]*423consonant with the provisions of section 204 of the Surrogate’s Court Act directing the apportionment of ‘ ‘ all rents * * * and all annuities, dividends and other payments of every description ” between the holders of successive estates. (Matter of Booth, 105 N. Y. S. 2d 73.)

Submit decree on notice construing the will in accordance with the ruling here made.

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Bluebook (online)

20 Misc. 2d 422, 194 N.Y.S.2d 949, 1959 N.Y. Misc. LEXIS 2595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-construction-of-the-will-of-wagner-nysurct-1959.