In re the Accounting of Smith

Headnote

Will — trust — failure to designate remaindermen — trust fund, upon death of cestui que trust passes under residuary clause of will of testator.

Matter of Fellows, 206 App. Div. 168 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entéred July 6, 1923, which affirmed a decree of the New York County Surrogate’s Court, construing the will of Edward B. Fellows, deceased, which provided: “Five, I give and bequeath to my son Theodore Ward Fellows, residing at Salem, New Hampshire, twenty-five thousand dollars, Five thousand thereof to be paid to him the first day of July, A. D. 1900, unless my son above named, George Peters Fellows, should die before the first day of July A. D. 1900, in which event I direct the said sum of Five thousand dollars to be paid to the said Theodore Ward Fellows, as soon thereafter as practicable. The remainder of said sum to wit Twenty thousand dollars to be held in trust for the said Theodore Ward Fellows during his lifetime and to be invested in safe interest bearing securities and the income thereof to be paid semi-annually to the said Theodore Ward Fellows during his lifetime.” Theodore Ward Fellows died June 8, 1922. The question was whether the trust fund passed under his will or was disposed' of by the residuary clause of the will of his father as held by the surrogate.