Ryan v. Felton

BARNARD, P. J. This is an appeal from an order decreeing that a testamentary trust terminated on February 22, 1949. The trust provisions of the will, which was admitted to probate on January 21, 1941, are set forth in six paragraphs, only a part of which are material here.

The fourth paragraph leaves the bulk of the estate to two trustees under the conditions which follow. It then directs the trustees to pay the net income from one piece of real property to the testator’s wife during her lifetime, and in the event of her death to pay' one-half of that income to the wife’s sister ' ‘ Tess Felton, during the lifetime of said Tess Felton or until she remarries” and the other half to his brother and sisters as thereafter directed. It then provides that if “Tess Felton should die or remarry during the continuance of this trust” all of this income shall be paid as thereafter directed.

The fifth paragraph directs the trustees to pay the net income from the remaining real property to his brother and his two sisters; that if his wife should die the other half of [789]the income provided for her in paragraph four shall be paid to his brother and two sisters; that in the event of the death or remarriage of Tess Felton all of the net income mentioned in paragraph four shall be paid to the brother and two sisters; and that, if necessary, all of the income from all of the properties should be used to insure that his wife receive at least $250 per month.

The ninth paragraph reads as follows:

“My trustees are herewith directed to carry on said trust until such time as there is only one survivor left of either of the following, to wit: My wife, Genevieve J. Ryan; my brother, Jack Ryan; my sister, Josephine Ryan; and my sister, Nellie Waggott; and when there is only one survivor of said four left, my trustees are directed to close my said trust estate and distribute all of the real and personal property to said survivor, and I hereby give, devise and bequeath all of said real and personal property remaining in my said trust estate to the survivor of the four above-named parties.”

The decree of distribution entered on December 14, 1942, distributed the trust property to the trustees “subject to the trust expressed in the last will” of the deceased. One of the sisters named in paragraphs five and nine died in November, 1943. The widow of the testator died in October, 1946. One half of the income previously paid to her was thereafter paid to Tess Felton until February 22,1949, on which date the other sister died, leaving the brother, Jack Ryan, as the survivor of the four persons named in the ninth paragraph.