In re DiBiasio

Defendants appeal a lower court ruling that upon the death of Testator, the rest, residue, and remainder of Testator’s trust vested in the nephew Trustee, who was the remainderman designated in Testator’s will. Defendants argue that the trial court erred as a matter of law in failing to follow Testator’s clear testamentary intentions. Testator had executed a will in which he created a trust and named his nephew as trustee. The trust was to provide for the proper care, support, maintenance, education, and welfare of Testator’s surviving sisters and brother. Upon the death of Testator’s last sibling, certain cash legacies were to be distributed free and clear of the trust to Testator’s heirs. After these payments, the trust was to be paid and distributed to Trustee for his sole use and benefit. Trustee died prior to all of the trust’s life beneficiaries. At the death of Trustee, Trustee’s son filed a complaint to be named successor trustee. Defendants counterclaim, and argue tha t the testamentary language indicates Testator’s intent to create a contingent remainder whereby Trustee’s interest in the residue of the trust was dependant on his outliving Testator’s siblings.