Matter Of Marine Midland Bank, N.A.

547 N.E.2d 1152 (1989)

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Nature of the Case

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Facts

Carl was married and childless when he died. He disposed of virtually his entire estate through two trusts. The trust established in paragraph sixth provided that testator's brothers, Leonard and Roy, were to be equal income beneficiaries, and upon the death of either of them his one-half interest in the trust (that is, a one-fourth interest in the residuary) would pass to 'his child or children.' When Leonard died in 1978, his children, Jacqueline and Daniel, took equally of Leonard's share in this trust. Roy continues his life tenancy in the other portion of this trust. The trust in paragraph fifth of the will is at issue. There, Elsie, testator's widow, held a life estate. Upon her death, testator's will directed the corpus of this trust be paid as follows: '(a) One-half to my brother, E. Leonard '(b) One-half to my brother, Roy. If a brother predeceases Elsie, then his share of this Trust shall be paid over to his surviving child or children, share and share alike. If one of my brothers shall predecease Elsie, without issue surviving, then his part of this Trust shall be paid over to his surviving brother.' Roy survived Elsie and took his share pursuant to clause. At issue is Leonard's one-quarter residuary share, which, because of Leonard's predeceasing Elsie. Leonard's son, Daniel, also predeceased Elsie and leaves a widow and children who now seek to take a share of the residuary through this clause, though they are not 'surviving child or children.'