Button v. Hemmens

Appellate Division of the Supreme Court of New York

Button v. Hemmens

92 A.D. 40, 86 N.Y.S. 829

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 15, 1904

StatusPublished

Cited by1 cases

This text of 92 A.D. 40 (Button v. Hemmens) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Button v. Hemmens, 92 A.D. 40, 86 N.Y.S. 829 (N.Y. Ct. App. 1904).

Pincite

Opinion

Smith, J.:

The express trust created by the will of Sarah J. Davis did not ■ terminate upon the death of the trustee. It then vested in the Supreme Court to be exercised through its appointee, or the administrator with the will annexed, the substituted trustee. (Matter of Valentine, 3 Dem. 563 ; Matter of Hecht, 71 Hun, 63.) After the death of Crane, therefore, this substituted trustee was required to pay the income of the said fund yearly to the plaintiff, and so. much of the principal as the court, in its discretion, should say was proper and necessary for his support. This discretion of the court, however, is not an arbitrary discretion and can only be exercised upon evidence showing the circumstances and necessities of the cestui que trust. Upon the trial of this action there was no evidence whatever upon which could be based a finding that the plaintiff was in need of any more than the income of the trust fund, and the direction of the court, therefore, to pay over the principal thereof as well as the income was clearly unauthorized.

The judgment should, therefore, be reversed and a new trial [44]*44granted, with costs to the appellant in this court and the court ■ below to be paid out of the estate of Sarah J. Davis.

All concurred; Parker, P. J., in result; Houghton, J., not sitting.

Judgment reversed and new trial granted, with costs to appellant in this court and in the court below to be paid out of the estate of Sarah J. Davis, deceased.

Free access — add to your briefcase to read the full text and ask questions with AI

Smith, J.:

The express trust created by the will of Sarah J. Davis did not ■ terminate upon the death of the trustee. It then vested in the Supreme Court to be exercised through its appointee, or the administrator with the will annexed, the substituted trustee. (Matter of Valentine, 3 Dem. 563 ; Matter of Hecht, 71 Hun, 63.) After the death of Crane, therefore, this substituted trustee was required to pay the income of the said fund yearly to the plaintiff, and so. much of the principal as the court, in its discretion, should say was proper and necessary for his support. This discretion of the court, however, is not an arbitrary discretion and can only be exercised upon evidence showing the circumstances and necessities of the cestui que trust. Upon the trial of this action there was no evidence whatever upon which could be based a finding that the plaintiff was in need of any more than the income of the trust fund, and the direction of the court, therefore, to pay over the principal thereof as well as the income was clearly unauthorized.

The judgment should, therefore, be reversed and a new trial [44]*44granted, with costs to the appellant in this court and the court ■ below to be paid out of the estate of Sarah J. Davis.

All concurred; Parker, P. J., in result; Houghton, J., not sitting.

Judgment reversed and new trial granted, with costs to appellant in this court and in the court below to be paid out of the estate of Sarah J. Davis, deceased.

Cite This Page — Counsel Stack

Bluebook (online)

92 A.D. 40, 86 N.Y.S. 829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/button-v-hemmens-nyappdiv-1904.

Opinion

Related

Cite This Page — Counsel Stack