In these several appeals involving marital, residuary and inter vivos trusts, I dissent in part with respect to the three inter vivos trusts created by the decedent Hyman Alpert.
We have here on internecine family dispute, which, perhaps, has colored the outcome. Without going into various details, the three inter vivos trusts were created in 1951, funded by $7,500 each, which, because of prudent real estate investments, burgeoned into substantial values. The trusts provided that principal and income could be accumulated and that the amount and time of payments should be "in the sole and absolute discretion of the Trustees, which shall be exercised for the good and welfare of the beneficiary.”
While there was provision for remainder, the instrument also stated that the primary concern of the donor "is for the income beneficiary”.
The basic over-all dispute is between the brothers of the decedent and their families as against the decedent’s surviving spouse and children, those children being the beneficiaries of the inter vivos trusts. Because the brothers are the trustees, they are considered suspect in terms of acting for the "good and welfare” of the beneficiaries.
The trusts provided for a payment to each beneficiary of a total of $15,000 upon marriage or reaching the age of 25, all of which conditions have been attained. The $15,000 payment for each is sought, plus distribution of income.
The Surrogate, seemingly on the basis of the conflict of interest, directed the specific payments, plus distribution of income.
It is contended that the payments had actually been made at a much earlier date and, moreover, that, in their discretion, the trustees are accumulating income to be added to principal and cannot be directed to expend it.
Lending credence to this latter position is the fact that accumulations started in 1975, when the grantor died, although the litigation and controversy did not commence until 1981. Therefore, it may be that the trustees, in their "sole and absolute discretion”, acted in good faith with respect to the accumulations. Accordingly, it would seem that a hearing would be in order to determine whether the accumulation is taking place in the judgment of the trustees as being beneficial or whether they lack good faith because of the family controversy. A summary disposition does not sufficiently probe this aspect, and, accordingly, I would reverse to that extent *447and direct a hearing with respect to the three inter vivos trusts.