The sole income beneficiary of a testamentary trust petitions to terminate his interest in the trust and have the principal paid to his daughter, the presumptive remainderperson of the trust. In support of the application, the petitioner relies upon the alternative theories that: (1) he can exercise his common law right of renunciation or (2) the trust should be terminated as an uneconomical trust pursuant to EPTL 7-1.19. Process was served upon the trustee and the petitioner's daughter, neither of whom opposes the relief requested.

The decedent did not waste any words in establishing the trust. The trust provides that the trustee shall pay the income to the petitioner "during his lifetime and upon his death the remainder to his issue." It appears that since the decedent's death on December 4, 1994, the petitioner has received the income from the trust. The trust principal is approximately $71,800. The petitioner, who is 53 years of age, states that he has "no intentions of having any other children" and he does not want to continue receiving the modest income from the trust.

Assuming, arguendo, that the petitioner has a common law right of renunciation which is not subject to the EPTL 2-1.11(b)(2) requirement that a renunciation must be made "within nine months after the effective date of the disposition" and "may be extended, in the discretion of the court, on a petition showing reasonable cause," the petitioner, by having accepted income distributions from the trust for more than a decade, may not now renounce that which he has already accepted in whole or in part (EPTL 2-1.11(f); Matter of Blachly, NYLJ, Jan. 23, 2006, at 35, col. 3; Matter of Simon, NYLJ, Feb. 28, 2002, at 20, col. 6; Matter of Valenzano, NYLJ, Aug. 14, 1998, at 26, col. 2).

The petitioner stands on firmer terrain with respect to his request to terminate the trust pursuant to EPTL 7-1.19. The court is authorized to terminate a trust thereunder upon finding "that continuation of the trust is economically impracticable, that the express terms of the disposing instrument do not prohibit its early termination, and that such termination would not defeat the specified purpose of the trust and would be in the best interests of the beneficiaries." In the event the petitioner establishes the criteria for terminating the trust, the court may enter an order directing the distribution of the trust assets to either or both income and principal beneficiaries, "in such manner, proportions and shares as ... will effectuate the intention of the creator" (EPTL 7-1.19[a][2]).

Courts do not routinely conclude that a trust in excess of $70,000 is economically impracticable. However, where, as here, the termination of the trust is in accord with the settlor's [*2]intention when she established the trust and appears to be in the best interests of the beneficiaries, courts are more liberal in holding that trusts with greater values are no longer economically feasible (Matter of McGovern, NYLJ, Feb. 6, 2007, at 32, col. 5 [$83,000 trust terminated]; Matter of DiMarco, NYLJ, Nov. 1, 2006, at 32, col. 6 [$85,000 trust terminated]; Matter of Kistner, NYLJ, Jan. 23, 2006 at 35, col. 1 [$91,000 trust terminated]).

Here, the settlor wanted the petitioner to have at least some income during his life and then wanted his issue to benefit from the principal. Her goals will be fulfilled by granting the application inasmuch as the petitioner states that he no longer has any need for the modest income generated by the trust and it appears that his sole issue would benefit from receiving the trust principal now rather than at some unascertainable future date.

The court finds that the petitioner has made the showing required by EPTL 7-1.19. Accordingly, the application to terminate the trust and pay the principal to the petitioner's daughter is granted.

Submit decree.

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SURROGATE