Matter of Adler

Matter of Adler 2010 NY Slip Op 08862 [79 AD3d 426] December 2, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

In the Matter of a Trust for the Benefit of Erna Adler. Stephen Adler, Respondent; Renata Adler, Appellant.

—[*1] Law Office of Kathy L. McFarland, Woodstock (Kathy L. McFarland of counsel), for appellant.

Law Offices of Allan E. Kirstein, New York (Allan E. Kirstein of counsel), for respondent.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered October 5, 2009, which, upon reconsideration, adhered to an interpretation of the parties' settlement stipulation as requiring respondent to pay petitioner the $35,000 differential in the value of two parcels of property from her own personal funds, rather than from trust funds, unanimously reversed, on the law, without costs, and it is directed that the $35,000 be paid from trust funds.

The trust instrument unambiguously required the trustee to divide principal distributions into "equal parts" and gave the trustee discretion to allot trust assets among remainderman shares to fulfill this requirement (see Matter of Matthews Trust No. 1, 61 AD3d 511, 512 [2009], lv denied 13 NY3d 702 [2009]). The trust provisions are not altered by the parties' stipulation of settlement (see EPTL 7-2.4; Matter of Wallens, 9 NY3d 117, 122 [2007]; Rosner v Caplow, 90 AD2d 44, 49 [1982], affd 60 NY2d 880 [1983]). Concur—Tom, J.P., Friedman, DeGrasse, Freedman and Manzanet-Daniels, JJ.