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Central Hanover Bank and Trust Co. v. Bruns

Decided: November 9, 1951.

CENTRAL HANOVER BANK AND TRUST COMPANY, AS SURVIVING TRUSTEE UNDER THE WILL OF EDWIN G. BRUNS, JR., AND MARTHA C. BRUNS, AS EXECUTRIX OF THE WILL OF EDWIN G. BRUNS, DECEASED TRUSTEE, PLAINTIFFS,
v.
MARGARET O. BRUNS, ET AL., DEFENDANTS



Leonard, J.c.c.

Leonard

The complaint herein was filed by Central Hanover Bank and Trust Company, surviving trustee under the will of Edwin G. Bruns, Jr., and by Martha C. Bruns, as executrix of the will of Edwin G. Bruns, deceased trustee.

The testator, Edwin G. Bruns, Jr., died on January 13, 1941, leaving his last will, which was duly admitted to probate by the Surrogate's Court of Monmouth County on January 24, 1941, and letters testamentary and letters of trusteeship were duly issued by said court to Edwin G. Bruns on that date. On July 8, 1943, Central Hanover Bank and Trust Company duly qualified as co-trustees of the trust created by said will. Said Edwin G. Bruns, the co-trustee, died on July 8, 1950, and Martha C. Bruns was appointed as executrix. This is the first intermediate accounting by the trustees covering their administration of the trust, for the period beginning September 15, 1943, and ending July 8, 1950.

The complaint prays for the allowance and approval of the said account, and the surviving trustee therein also seeks the instructions of the court in respect to various questions arising under said will.

By his will the testator, after bequeathing to his wife, Margaret O. Bruns, his household furnishings and automobile and real property, provided in Articles Fifth, Sixth and

Seventh, for three trust funds. These Articles of his will read as follows:

"FIFTH: I direct my Executor hereinafter named to set apart a sum equal to forty-five percent of my net estate, in cash or from investments held by me at the time of my death, and deliver the same to the Trustees hereinafter named, to be held by the Trustees in Trust for the following uses and purposes:

(a) I direct said Trustees to receive the income arising from any investments held or made by them and to pay over the net income to my wife, MARGARET BRUNS, if she then be living, during the term of her life, in quarterly installments.

(b) Upon the death of my wife, or if my wife shall predecease me, I direct my Trustees hereinafter named to pay over the net income of the aforesaid trust fund to my father, EDWIN G. BRUNS.

(c) Upon the death of my father, EDWIN G. BRUNS, or in the event that my father shall predecease me or my wife, I give, devise and bequeath the corpus of said trust fund as follows:

One-half of the corpus of said trust fund to my niece, Emilie G. Terry, to be hers absolutely and forever.

One-half of the corpus of said trust fund to be divided equally between The Actors Fund of America; The Saranac Lake Sanitarium for Prevention of Tuberculosis, Saranac Lake, New York and Hundred Neediest Cases Fund, sponsored by the New York Times, New York City, New York, share and share alike.

SIXTH: I direct my Executor hereinafter named to set apart a sum equal to forty-five percent of my net estate, in cash or from investments held by me at the time of my death, and deliver the same to the Trustees hereinafter named, to be held by the Trustees in Trust for the following uses and purposes:

(a) I direct said Trustees to receive the income arising from any investments held or made by them and to pay over the net income to my father, Edwin G. Bruns, if he then be living, during the term of his life, in quarterly installments.

(b) Upon the death of my wife, or if my father shall predecease me, I direct my Trustees hereinafter named to pay over the net income of the aforesaid trust fund to my wife, Margaret Bruns.

(c) Upon the death of my wife, Margaret Bruns, or in the event that my wife shall predecease me or my father, I give, devise and bequeath the corpus of said trust fund as follows:

One-half of the corpus of said trust fund to my niece Emilie G. Terry, to be hers absolutely and forever.

One-half of the corpus of said trust fund to be divided equally between The Actors Fund of America; The Saranac Lake Sanitarium for Prevention of Tuberculosis, Saranac Lake, New York, and Hundred Neediest Cases Fund, sponsored by the New York Times, New York City, New York.

SEVENTH: All the rest, residue and remainder of my estate, amounting to ten percent of my net estate, in cash or from investments held by me at the time of my death, I direct my Executor hereinafter named to set apart and deliver the same to the Trustees hereinafter named, to be held by the Trustees in Trust for the following uses and purposes:

(a) I direct said Trustees to receive the income arising from any investments held or made by them and to pay over the net income to my niece Emilie G. Terry, if she then be living, during the term of her life, in quarterly installments.

(b) Upon the death of my said niece, Emilie G. Terry, I give and bequeath the principal of the trust fund created for her benefit, to her child or children her surviving, share and share alike."

By Article Eighth he appointed his father, Edwin G. Bruns, as executor of his will, and by Article Tenth he appointed his father and Central Hanover Bank and Trust Company as trustees thereunder. Article Tenth also contains numerous other provisions conferring powers and discretion upon his trustees, and reference will be made thereto in more detail in the portions of this opinion directed to said Article.

Testator left no issue surviving him and was survived by his widow, Margaret O. Bruns. He was also survived by his father, who subsequently died on July 8, 1950. In addition, he left his niece, Emilie G. Terry, who remarried subsequent to the date of his will and is now known as Emilie B. Clifford. Mrs. Clifford has three children, Frederick G. Terry, Jr., Edwin G. B. Terry and Michael B. Terry, who are aged 13, 11 and 8 years respectively.

By stipulation and by the terms of the pretrial order all of the questions originally presented in the complaint have been agreed upon or determined, with the exception of two. Those two remaining questions are as follows:

First: Is amortization of premiums paid on the purchase of securities mandatory or in the ...


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