Opinion
April 1, 1968
Appeal by the remainderman of the trust created under the testator's will, as limited by his brief, from so much of a decree of the Surrogate's Court, Kings County, dated September 25, 1967, as construed the trust provisions of the will. Decree reversed insofar as appealed from, on the law and the facts, without costs; in accordance, the decretal provisions construing the trust provisions, granting an allowance to the attorneys for the children of De Witt C. Howell and directing distribution to or on behalf of the children of De Witt C. Howell are struck out; and the principal of the trust is directed to be paid to Francis P. Howell, the exclusive remainderman of the trust. The simple and plain meaning of the testamentary provision bequeathing the trust principal to the "child or children" of Ethel Barnum Howell surviving her, to be divided between them equally, is that such surviving child or children alone are qualified to take. There is nothing to show a different intent on the part of testator. The stirpal distribution embraced in the construction of the learned Surrogate also is at odds with the direction to divide the stock equally between those who qualify. Accordingly, appellant is the exclusive remainderman of the trust. Beldock, P.J., Christ, Benjamin and Martuscello, JJ., concur; Munder, J., dissents and votes to affirm the decree insofar as appealed from, upon the opinion of the Surrogate. [ 53 Misc.2d 413.]