Majority
p. 657In the Matter of the Accounting of the Union Trust Company of New York, as Substituted Trustee under the Will of Christian E. Detmold, Deceased. Emilie L. Gilford et al., Appellants; Edward D. Lentilhon et al., Respondents. (Argued February 26, 1917; decided March 13, 1917.)
Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, 1916, which modified a decree of the New York County Surrogate’s Court settling the accounts of the trustee herein, so as to provide that the trust fund should he distributed among the issue of Zella Trelawney Lentilhon per stirpes instead of per capita as provided in the decree of the surrogate. The testator, who died July 2, 1887, by his will provided a trust fund for the
p. 658
benefit of his two daughters, Zella Trelawney Lentilhon and Wilhelmina Emilie d’Arschot referred to in the will. Zella Trelawney Lentilhon died on November 21, 1891, and the trust fund which was held for her benefit was thereafter distributed among the persons entitled thereto. Wilhelmina Emilie d’Arschot died on February 21, 1912, without issue. Her husband had predeceased her in January, 1893. Upon the death of Wilhelmina Emilie d’Arschot without issue, the remainder of the trust fund which was held for her benefit during her life passed under the 3d paragraph of the decedent’s will to the issue of her sister, Zella Trelawney Lentilhon, then surviving. The question which arose in this case was whether the “issue”.of Zella Trelawney Lentilhon who are entitled to the fund in equal shares are the eight children (grandchildren of the testator) of Zella Trelawney Lentil-hon who were living at the death of Wilhelmina Emilie d’Arschot, or whether it includes the twelve grandchildren (great-grandchildren of. the testator) of Zella Trelawney Lentilhon who were living at the death of Wilhelmina Emilie d’Arschot or born in due time thereafter.
Egerton L. Winthrop, Jr., Daniel J. Mooney, John Reilly, Bernard S. Van Rensselaer and Francis L. Robbins, Jr., for appellants.
James R. Deering for Edward D. Lentilhon, respondent.
Robert Thorne and John K. Berry for Jose de T. Lentilhon et al., respondents.
L. Laflin Kellogg, Alfred C. Petté, Frederic D. Philips and Charles K. Carpenter for Eugene Lentilhon et al., respondents.
Order as modified by the previous order of this court ( 219 N. Y. 537 ) affirmed, with costs to respondent payable out of the estate; no opinion..
Concur: Hiscock, Oh. J., Ouddeback, Hogan, McLaughlin and Andrews, JJ. Dissenting: Chase and Pound, JJ.
Cases cited
- In re Union Trust Co. 170 App. Div. 176 p. 657
- In re the Accounting of Union Trust Co. 219 N. Y. 537 p. 658