DECISION The primary relief requested by the petitioners in this multi-faceted application is a construction of certain language in Article Fourth of captioned decedent’s last will and testament concerning per stirpital distributions contemplated by the testator therein. In addition, petitioners seek leave to resign as co-trustees, appointment of their successor(s), judicial settlement of their intermediate trust account(s), division of trust assets into two equal trusts, fixing and approval of legal fees and commissions, and related relief.Captioned decedent died on September 6, 1960, whereupon her last will and testament was admitted to probate by this court on September 29, 1960. Pursuant to Article Fourth of the decedent’s will, her entire residuary estate was left in trust for the primary benefit of her issue, and would terminate upon the death of her two surviving youngest descendants. The current co-trustees are Deutsche Bank Trust Company Delaware and William A. King. The decedent’s surviving children were Edward B. Austin, Elizabeth A. Kinloch and Marjorie A. Parsons. Edward B. Austin died without issue on December 25, 1971. Kinloch died on December 21, 1983, whereupon her one-half net income share of the trust was paid to her surviving (3) children; the other one-half was paid to Parsons until her death on June 16, 1993. Subsequently, the Kinloch children (3) and the Parsons children (2) entered into a “Family Settlement Agreement” in February, 1994, agreeing that the net income would be split equally until the death of one of them or notice to the trustees to discontinue this arrangement. This apparently avoided a dispute over whether income should be distributed equally among the five (5) income beneficiaries or split in half between the Kinloch children and the Parsons children.The payment scheme reflected in the “Family Settlement Agreement” has continued to this day, however, petitioners have advised the court that the respective branches of the family are now having a dispute concerning the investment objectives of the co-trustees. The co-trustees propose splitting the funds into two separate trusts for the respective branches of the family (“Trust Account #1″ and “Trust Account #2″). They would resign as co-trustees of Trust Account #2 and turn over the undistributed income and principal to the proposed successor trustee, Comerica Bank & Trust, N.A. (“Comerica”).Before doing so, however, petitioners ask the court to construe the language in Article Fourth (5); to wit, “…net income in equal shares per stirpes to the persons who from time to time shall be my living issue….” Petitioners posit that, pursuant to EPTL 1-2.14, as amended, a per stirpital distribution under these circumstances would require that each grandchild of the decedent receive a one-fifth share of the net income. However, the pertinent amendment to the EPTL was not enacted until 1992, some thirty-two (32) years after this decedent’s death. Prior to the 1992 amendment, petitioners advise the court that the pertinent statute was “ambiguous” under like circumstances. According to petitioners, it is also unclear how income should be distributed upon the death of one of the grandchildren, while one of the measuring lives is still in existence.In a prior construction proceeding, which was filed in July, 2013, separate guardians ad litem were appointed for the infant and unborn children of each branch of the decedent’s family (“the Kinloch children” and “the Parsons children”). That earlier proceeding was discontinued and the guardians ad litem filed their respective reports, upon seeking leave of court to enter into a stipulation of discontinuance, without prejudice.In connection with the instant proceeding, the guardians ad litem have now filed their thoughtful and well-researched reports and recommendations for their respective wards, and have advised the court, inter alia, that jurisdiction is complete in this matter.The guardians ad litem recommend approval of the accounts, provided certain amendments are made, including a proper reflection in the accountings themselves of the transfers pursuant to the power to adjust (EPTL 11-2.3 (b) (5)), the reduction of certain legal fees, as well as amendments to Schedule H in each of the accounts.Construction — Article FourthWith respect to the Article Fourth construction issue, Article Fourth establishes the terms of a residuary trust for the benefit of four (4) named individuals with a direction that the balance of net income produced by the trust to be shared “in equal shares per stirpes to the persons who from time to time shall be my living issue” (LWT Art. Fourth (5)). As the guardians ad litem note, EPTL 2-1.2 was designed to overrule the common law presumption that held that a disposition to issue would be per capita, unless the will directed otherwise (Cooper Report, p.21, 62). Both guardians ad litem stress the language “from time to time (shall be) my living issue” as an indication that the testator meant for the division/distribution of trust income to be calculated as the class of surviving issue evolved; allowing for the conclusion that, while all beneficiaries are in an equal degree of consanguinity to their common ancestor, they will take per capita and not per stirpes.This interpretation is supported by the language used by the testator, as well as case law contemplating the impact of EPTL 2-1.2 in similar situations (see In re Murphy’s Will, 103 Misc2d 719; In re Palmer’s Estate, 38 Misc2d 553; In re Libby’s Estate, 206 Misc. 723). Therefore, the will is construed to provide that the net trust income under Article Fourth be distributed among this decedent’s five grandchildren per capita, with a per stirpital distribution upon the death of such grandchild.Trust Division, Resignation of Co-Trustees and Appointment of Successor TrusteeEPTL 7-1.13 (a) (3) authorizes the court to allow the establishment of two or more separate trusts from an express trust “for any reason not directly contrary to the primary purpose of the trust.” The guardians ad litem had expressed their concern in the earlier application referenced herein that the instrument does not provide for two corporate fiduciaries and that the appointment of an additional/separate corporate fiduciary would unjustifiably increase annual commissions. They now express satisfaction with the agreement that Comerica will align their fees with those of Deutsche Bank.The court is satisfied that the proposed division satisfies the requisites of EPTL 7-1.13, provided the division further comports with the specific requisites of EPTL 7-1.13 (d), the fees of the corporate fiduciaries are aligned so that Comerica’s fees do not exceed Deautche Bank’s rates, and the separate trusts continue to be administered pursuant to the terms of captioned decedent’s last will and testament.In furtherance of this goal, Deutsche Bank and William King are allowed to resign as trustees of the proposed “Trust account #1″ whereupon Comerica will be appointed successor trustee of said trust, upon due qualification, without bond, pursuant to Article Sixth. Deutsche Bank and William King will continue as co-trustees of the proposed “Trust account #2″ upon division of trust assets in accordance with this decision and the subsequent decree to be entered herein.The Trustees’ Accounting — Legal FeesThe intermediate account presented to the court for judicial settlement on this application is rendered in two parts: The Part 1 Account covers the period between December 31, 2010 and December 31, 2013; The Part 2 Account covers the period between December 31, 2013 and October 31, 2017.Initially it must be stated that any unpaid fees sought for the period after the close of the accounting before the court cannot be approved at this time. Therefore, $3,808.00 of Phillips Nizer’s fee is not allowed at this time; as is $181.49 of Russo Karl’s fee; as well as $4,700.00 of Carter Ledyard’s fee. It also appears that the firm of Gregory Saum, LLC, which seeks payment for services rendered over the course of fifteen and three quarter hours (15.75), are unsubstantiated by contemporary time records or invoices, and may not be approved at this time. The balance of the fees sought appear to satisfy the requisite standards established under Matter of Freeman, 34 NY2d 1, Matter of Potts, 123 Misc. 346, aff’d. 213 App.Div. 59, aff’d. 241 NY 593, and appear to be fair and reasonable.To the extent that the various firms involved seek reimbursement for disbursements constituting postage, express mail, photocopying, mileage, etc., this court continues to disallow such expenses as office overhead, which is expected to be absorbed by counsel (Matter of Diamond, 219 AD2d 717; Matter of Zalaznick, 11/19/76, NYLJ, 11 [col. 1], aff’d 61 AD2d 772; Estate of Graham, 238 AD2d 682). Thus, Phillips Nizer’s disbursements are reduced by the sum of $5,720.34, which is disallowed; Russo Karl’s disbursements are reduced by the sum of $66.49, which is disallowed; Carter Ledyard’s disbursements are reduced by the sum of $33.12, which is disallowed.The Trustees’ Accounting — Power to AdjustThe accounting should be further amended to reflect that what appear to be principal distributions in contravention of the terms of the decedent’s last will and testament were the result of the trustees’ exercise of the statutory power to adjust between income and principal (EPTL 11-2.3 (b) (5)). The pertinent account schedules are to be amended accordingly and an explanation as to the reason (s) for adjustment proffered.Thus, the court adopts the recommendations of the guardians ad litem, and approves the accounting, as amended and modified herein. Their fees will be set in the decree hereinafter directed for settlement, upon submission of affirmations of services from both guardians ad litem.Settle decree with amended schedules on notice.
