In re the Construction of the Will of Johnson

The petitioner in this proceeding seeks a construction of article “ 6 ” of the will to determine its validity and effect; and the allowance to him of an advance payment on account of commissions in accordance with section 285-c of the Surrogate’s Court Act.

The testator died December 4,1958 a resident of Kings County leaving a will dated March 12,1958 and codicil dated November 6, 1958, which were admitted to probate on December 31, 1958.

By the terms of his will, the testator provided for alternative dispositions, the first four articles of his will to be operative if he were a public official at his death. At the date of his death the testator was in public service and not a pensioner under the retirement system. The articles “ 5 through 8 ” were expressly declared to be operative ‘ ‘ after I have become a pensioner ”, and provided for the creation of two trusts under article “5”, and article “6” provided for the monthly remuneration for the executor and trustee “ chargeable to each trust fund.”

*354The prov.sions of this will were dependent up,on alternative occurrences of two events. Since the condition providing for the dispositions contained in .articles ‘ ‘ 1 through á ’ ’ prevailed and were in effect at the testator’s death, the alternative provisions contained in articles “ 5 through 8 ’’including the provision for commissions contained in article “ 6 ” for payments to the executor and trustee to he charged to nonereated trusts fail, (2 Davids, New York Law of Wills, § 877.)

Since no trusts are to be created under this will commissions will be allowed the executor ip. .accordance with section 285 of the Surrogate’s G,Qy.rl AqL The petitioner’s application for an .advance payment Q$ $2,500 on account of hjg receiving commissions is granted on condition that a bond in a like sum is filed. (Matter of Gokey; 205 Misc. 266.)

Settle decree on notice.