
    In the Matter of the Estate of Laura E. Purdy, Deceased.
    Surrogate's Court, Westchester County,
    December 4, 1958.
    
      Warren W. Wells for petitioner.
    
      William R. Gondit for executors and trustees.
   John J. Dillon, S.

The testatrix directed that her entire residuary estate be divided into five equal shares and that one of such shares be held in trust and the income therefrom be paid to John W. Havery, her son, for life and upon his death the trust terminate and the remainder thereof he paid in equal shares to his surviving children.

The decree settling the trustees’ intermediate accounting proceeding recited the fact that John W. Havery was indebted to the estate in the sum of $3,250, and such decree provided that the income from the trust created for his benefit be divided equally among the five residuary beneficiaries until the debt was satisfied. John W. Havery died on August 30, 1958, survived by two sons, both of whom now seek distribution of the remainder of the trust created under article “eerth” (d) of the will. The trustees have interposed an answering affidavit in which they contend that all of the persons having a vested or contingent right to share in the division of the income as provided for in the decree settling the trustees’ intermediate account, are necessary parties to this proceeding since there still remains an unpaid balance on the aforesaid debt.

The language of the will is clear and unequivocal and the court determines that the trust created under article fifth ” (d) has now terminated. There is no basis upon which to sustain the contention that the residuary beneficiaries can be adversely affected by a distribution of the trust principal, since such trust has terminated and since the trustees have not asserted any estate claim against the remaindermen. On the next accounting proceeding, in which the trustees will render a final accounting with respect to the trust created under article fifth (d), any and all questions relating to the manner in which the indebtedness of John W. Ha very has been handled will be resolved.

Accordingly, the trustees are directed to distribute the remainder of the trust to the two surviving sons of the income beneficiary in accordance with the express directions of article fifth ” (d) of the will.

Settle decree.  