I respectfully dissent. Surrogate’s Court properly granted petitioner’s motion for a protective order, finding that the language of the will does not indicate any intent on decedent’s part to condition the invasion of principal on a showing that petitioner’s non-trust income is insufficient for his support and welfare.
The cardinal rule of construction is that a will should be construed to carry out the intent of the testator (Matter of Martin, 255 NY 248). Where the testator attaches no conditions of need and the gift of principal is as broad as the gift of interest, the trustee may not consider the beneficiary’s income (see, Matter of Flyer, 23 NY2d 579). Several factors, including the language of the invasion provision and the will as a whole, indicate that a gift of principal was intended irrespective of the independent resources of petitioner, namely, the language of the will makes the gift of principal very broad. There is no condition that petitioner be compelled or required to deplete his own resources, or the substantial benefits derived under other provisions of the will, before the trustees may invade the principal. The gift from the principal of the trust in this case was not conditioned upon petitioner’s needs or the insufficiency of the trust income but solely for his "support and welfare”.
Decedent’s intent was ascertainable from the bare words of the instrument so that no evidentiary hearing was required.
I would therefore affirm the order of Surrogate’s Court.
Ordered that the order is reversed, on the law, with costs, and motion denied.