In re the Estate of Lee

Foley, S. On this accounting a question of construction arises. A fair interpretation of this will is that the testator gave one-half of his estate in trust to his executors to receive and apply the income for [512] the benefit of his only daughter during her life or until her marriage. This trust is a trust in personalty only. The daughter is still unmarried and is now the only surviving, child of the testator. Her three brothers died after the testator, and she is at present entitled not only to one-half the income, but to the whole remainder. She claims, however; that she is presently entitled to the possession and enjoyment of the entire estate because there was a merger of her interests as sole beneficiary and remainderman. With this contention I do not agree. The trust created by the first codicil was one to receive income and to apply it to her use. Such a trust is indestructible. Pers. Prop. Law, § 15. The interest of the beneficiary of the trust to receive the income for her life cannot be transferred or merged in the remainder so as to terminate the trust, nor can the payment of the principal of the fund to the person in whom are vested both the life estate and the remainder be made. Dale v. Guaranty Trust Co., 168 App. Div. 601; Cazzani v. Title Guar. <& Trust Co., 175 id. 369; affd., 220 N. Y. 683; Matter of Wentworth, 230 N. Y. 176. The sole surviving trustee having died, the Central Union Trust Company of New York will be appointed successor trustee of the one-half of testator’s estate provided for in the first codicil. Caroline King Lee is entitled to the other one-half immediately. Tax costs and submit decree on notice. Decreed accordingly.