Estate of Gallimore

PETERS, P. J.

Three of the four remaindermen of a testamentary trust created by the will of Sue Gallimore petitioned for a termination of the trust prior to the time fixed for its termination in the trust instrument on the ground that all purposes of the trust had been fulfilled. One remainderman objected. The trial court denied the petition to terminate, and the three petitioning remaindermen appeal. There is no merit to the appeal.

Sue Gallimore died testate. Elizabeth Gray, John and Margaret Gallimore, the three appellants, and Robert Gallimore, Jr., the objector, were her four surviving nieces and nephews.

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All are the children of Nellie Gallimore, the sister-in-law of Sue. The final decree of distribution was entered in Sue’s estate in December, 1939, and Sue’s will, by which the testamentary trust was created, was made part of that decree. The decree of distribution, which has long since become final, provides that the residue of the estate is distributed to three named persons as trustees for the following purposes:

“(a) To pay to Gong Yuen, the sum of Thirty Dollars ($30.00) a month, as long as he shall live.

“ (b) To pay the net income from this Trust, after the payment of said monthly sum to Gong Yuen, to Mrs. Nellie Gallimore, Elizabeth Gray, Robert Gallimore, Jr., John Gallimore and Margaret Gallimore, share and share alike, until the death of Nellie Gallimore.

(c) “Upon the death of Nellie Gallimore, said net income shall be paid to Elizabeth Gray, Robert Gallimore, Jr., John Gallimore and Margaret Gallimore, the survivor or survivors of them, share and share alike.

(d) “Upon the death of both Gong Yuen and Nellie Gallimore, all of said property shall belong to and become the property of Elizabeth Gray, Robert Gallimore, Jr., John Gallimore and Margaret Gallimore, share and share alike.”

All of the parties named in the testamentary trust are over the age of majority and fully competent. The trust estate presently consists of securities valued at $72,500 and a parcel of real property inventoried at $8,500. The real property produces an income of $300 per year, and the total expenses of maintaining the property amounts to about $400 a year. The various accountings by the trustees show that the total income produced by the trust estate has only been sufficient to pay all the costs of administration and the payments due to Gong Yuen under paragraph “(a).” In the past seven years no payments of income have been made to the income beneficiaries under clause “(b).” Nellie and Gong are still alive.