In the Matter of the Estate of Bross

Jack Bross died on August 29, 1974, leaving a testamentary trust that directed the trustee to pay income for his wife''s comfort and maintenance during her life. The trustee was not given authority to invade the corpus, and upon Mrs. Bross''s death the remainder was to go to her children, Jessica and Richard. In June 1993, Mrs. Bross entered a nursing home. Her condition deteriorated rapidly and she soon required round-the-clock care provided by private aides. Because the cost of the aides was not covered by Medicaid, Richard advanced payment and tried to work out an agreement with his sister to utilize the trust corpus (then valued at $51,000) for this expense.

In July 1993, the trustee agreed to terminate the trust in order to pay for the aides, but Richard was unable to reach an agreement with his sister. Richard then requested that the court authorize payments from the trust corpus to meet his mother''s medical needs, and further asked to be reimbursed for payments already advanced. Jessica opposed his application, claiming, inter alia, that as a creditor Richard lacked standing to seek construction of the trust and that invasion of the trust''s corpus was contrary to the testator''s intent. Before a settlement could be reached, Mrs. Bross died, and Jessica moved to dismiss Richard''s petition as moot and requested distribution of her one-half share of the trust remainder.

The court concludes that the trust principal was available to pay for the services of the private aides. The court observes that as a rule an income beneficiary may not use trust principal to recover his claim, but holds that in this case Richard is not an ordinary creditor because his application was brought primarily as a person concerned with the welfare of an incapacitated beneficiary. Therefore, it is not inappropriate for him to have advanced the funds and to seek reimbursement. The court also finds it reasonable to assume that Mr. Bross, as testator, intended that his wife be provided with the basic necessities of life, which included the services of the aides.