MATTER OF FUSSELL


34 A.D.3d 164 (2006)

821 N.Y.S.2d 733

In the Matter of THE CONSTRUCTION AND DIVISION OF THE TRUST FOR THE BENEFIT OF MARY EDITH FUSSELL, Respondent, and E. ROBERT FUSSELL, Appellant, Under an Agreement With EDITH H. WOODWARD, Dated December 21, 1950. ELIZABETH RACINE et al., Appellants.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

September 29, 2006.


Attorney(s) appearing for the Case

Williams & Williams, Rochester (Mitchell T. Williams of counsel), for E. Robert Fussell, appellant.

Forsyth & Forsyth, Rochester (Scott A. Forsyth of counsel), for Elizabeth Racine and another, appellants.

Boylan, Brown, Code, Vigdor & Wilson, LLP, Rochester (John M. Wilson, II, of counsel), for respondent.

HURLBUTT, J.P., GORSKI and GREEN, JJ., concur.


OPINION OF THE COURT

SCUDDER, J.

Edith H. Woodward (settlor) established an inter vivos trust by a trust agreement dated December 21, 1950. The trust agreement provides, inter alia, that the trustee is

"to pay the net income therefrom to [settlor's niece,] MARY JANE BISHOP FUSSELL[,] during her lifetime and upon her death to pay the net income therefrom ... to the use of her issue who may be living from time to time in equal shares per stirpes...

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