Matter of Levitan

George Levitan's will created a lifetime trust for his second wife Sydelle (defendant), giving her a testamentary power to redirect the trust remainder among George's or her own issue however she chose in her own will, but providing that if she never exercised that power, the remainder would pass to five other named individuals. George's only child, Gary (plaintiff), from a prior marriage, petitioned the probate court to interpret the will as giving him a vested remainder interest, arguing the five named individuals would only take if Gary had predeceased his father; Sydelle argued the will already vested the remainder in the five named people, subject to divestment only if she actually exercised her appointment power. The probate court granted Sydelle summary judgment, and Gary appealed.