In re Burk — 246 A.D. 758

Majority

p. 758

In the Matter of the Application of Annie M. Burk for a Determination as to the Validity, Construction or Effect of the Disposition of Property Contained in the Last Will and Testament of George A. Drake, Deceased. Annie M. Burk and Richard J. Maloney, as Special Guardian of Edna Winslow Drake, Donald Richard Drake and Roger Stewart Drake, Infants, Respondents; Chester A. Drake, Appellant.

In a proceeding in the Surrogate’s Court of Bungs county to construe a will, it appeared that the trust fund was in solido but the income was payable in equal parts to three different persons, with the right of the survivor or survivors to take the income theretofore payable to those beneficiaries who might die first. This provision suspended the power of alienation for a greater period than two lives in being. The decree severed the illegal provisions from those that were valid in accordance with the evident dominant purpose of the testator. Decree unanimously affirmed, with one bill of costs to the respondents executrix-trustee and the special guardian, payable out of the estate. (See Schermerhorn v. Cotting, 131 N. Y. 48 ; Leach v. Godwin, 198 id. 35; Matter of Colegrove, 221 id. 455; Matter of Horner, 237 id. 489; Matter of Gallien, 247 id. 195; Matter of Trevor, 239 id. 6.) Present — Lazansky, P. J., Young, Hagarty, Davis and Johnston, JJ. [ 153 Misc. 691 .]

Cases cited

Schermerhorn v. Cotting 131 N. Y. 48 N.Y. 1892-01-26 p. 758
In re the Estate of Drake 153 Misc. 691 N.Y. Sur. Ct. 1934-12-11 p. 758