## Facts

- Husband and wife created two substantially identical inter vivos trusts, one for each of their daughters.
- Each trust paid income to the named daughter for life.
- On the life beneficiary’s death, principal was to be distributed in this order: (1) to her “surviving issue”; if none, (2) among the other daughters; and if no daughters or their descendants survived at termination, (3) to “Fanny’s next of kin.”
- Fanny died while both life beneficiaries were alive, leaving it uncertain whether the trusts would ever terminate in a posture requiring distribution to “Fanny’s next of kin.”
- A construction proceeding sought instructions on when to determine the membership of the class “Fanny’s next of kin.”

## Issues

1. When a trust provides a contingent remainder to “Fanny’s next of kin” without specifying a time of ascertainment, is the class determined at Fanny’s death or at the future date of trust termination (if the gift over becomes effective)?

## Decision

- The court construed “Fanny’s next of kin” to mean those who were Fanny’s next of kin at the time of her death.
- It rejected a construction that would identify next of kin at the later date of trust termination.
- The ruling fixed the class as of Fanny’s death, while leaving distribution contingent on failure of the prior remainder provisions.

## Legal Principles

- Absent clear contrary intent, a gift to a named person’s “next of kin” refers to those who would take under the statute of distribution at that person’s death.
- Courts prefer constructions that vest interests at the earliest reasonable time and avoid prolonged uncertainty in identifying future takers.
- Language such as “X’s next of kin,” without terms like “then” or other temporal markers tied to termination, is ordinarily read as a death-time ascertainment of the class.

## Conclusion

The court held that the contingent remainder to “Fanny’s next of kin” was for the persons who met that statutory description at Fanny’s death, not those who might qualify at a later trust-termination date, because the instruments contained no clear direction to postpone class determination.


Matter of Erbsloh's Tr., 99 N.Y.S.2d 695 (Sup. Ct. N.Y. Cnty. 1950)