In re Hopper

Headnote

Matter of Hopper, 180 App. Div. 925 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 9, 1917, which affirmed a decree of the New York County Surrogate’s Court denying an application by the administratrix of Charles H. Hopper, deceased, to compel Harriet A. Hopper, as testamentary trustee under the will of George H. Hopper, deceased, to pay over to her one-sixth of the accrued income received by the said Harriet A. Hopper from the trust ■created by the said will. The testator gave the residue of his property to his wife in trust during her life to collect the income, pay one-half thereof to herself and divide the remaining half equally among his three children. In case of the death of any of his children, during the lifetime of his wife, leaving issue, such issue to receive the parents’ share of such income. ' Charles H. Hopper, one of the children, died without issue, his mother surviving.- The trustee claimed that the estate of Charles H. Hopper is not entitled to any portion of the income from the trust estate accruing subsequent to his- death, and that all of such income is divisible between the remaining living children of the testator. The contention of the petitioner is that the testator under his will made no provision for the disposition of income upon the

death of any of his children without leaving issue, and hence such income belonged to the person presumptively entitled to the next eventual estate under the provisions of section 63 of the Real Property Law- and section 11 of the Personal Property Law.