In re the Accounting of the United States Trust Co. 223 N.Y. 617

In the Matter of the Accounting of the United States Trust Company of New York, Respondent, as Trustee under the Will of Rhoda E. Hoyt, Deceased. Isabel H. Bangs et al., Appellants; Dorothy Hoyt, Respondent.

Matter of U. S. Trust Co. of New York, 179 App. Div. 923, affirmed.

(Argued March 18, 1918;

decided April 2, 1918.)

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 13, 1917, which affirmed a decree of the New York County Surrogate’s Court judicially settling the accounts of the trustee and construing the will of Rhoda E. Hoyt, deceased. The testatrix, by her will, erected a trust for the benefit of each of her four children with remainder to their issue if any, but “ In the event that any of my *618said children die without leaving lawful issue, then I give, devise and bequeath the share which would have come to such lawful issue respectively to my other children share and share alike to and for their own usé forever, and in the event of such other children dying leaving issue, the issue of such deceased child or children shall take per stirpes the share which would have fallen to the parent if living.” A son, Frank, subsequently died leaving an adopted daughter but no issue. Thereafter another son, Reuben, died leaving no issue. The question was whether the remainder to Frank, limited on the life of Reuben, vested in Frank on the death of his mother and passed to his adopted daughter as his only next of kin. The surrogate held that immediately upon the death of the testatrix, Rhoda B. Hoyt, Reuben M. Hoyt took a life interest in the fund left in trust for his benefit, and Jesse Hoyt, Isabel Hoyt Bangs and Frank R. Hoyt each took a vested remainder in such fund, subject to be divested by the birth of issue to Reuben; and, Reuben having died without issue, these three interests were never divested, and, upon the death of Frank R. Hoyt, his vested interest passed to his next of kin.

Howard Mansfield and Lucius H. Beers for Isabel H. Bangs, appellant.

William W. Scrugham for Cornelia H. Leslie et al., appellants.

Charles W. McKelvéy for United States Trust Company, respondent.

Marshall B. Clarke and Samuel T. Carter, Jr., for Dorothy Hoyt, respondent.