Eichacker v. Eichacker

277 A.D.2d 891

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1950
• Status: Published

Opinion

Judgment decreeing that a portion of the proceeds of a national service life insurance policy upon the life of the infant plaintiff’s father, who was killed in action on March 6, 1944, paid to defendant as contingent beneficiary named therein, are held in trust for said infant and directing payment thereof as such trustee, modified upon the law and the facts by striking therefrom the decretal paragraphs thereof numbered 4 and 8; by striking from the decretal paragraph thereof numbered 5 the concluding words “the aforementioned trust” and substituting therefor “ a trust in favor of Philip E. Eichacker ”; by striking from the decretal paragraph thereof numbered 6 the words “the sum of Thirty-five hundred fifteen ($3,515.00) Dollars ” and substituting therefor the words “ that portion of the proceeds of the aforesaid policy of insurance theretofore received by her as shall be in the ratio that 3515 bears to 10,000 and that she thereafter pay in like proportion all such proceeds of said policy as and when received by her”. As so modified, said judgment is unanimously affirmed, without costs. The payment of proceeds theretofore received by appellant, directed by the modification of decretal paragraph 6, shall be made within ten days from the entry of the order hereon. It is our opinion that this record establishes a valid and enforeible trust in the proceeds of the policy of insurance to the extent of $3,515 (Trustees of Amherst Goll. v. Bitch, 151 N. Y. 282, 323; Hirsh v. Auer, 146 N. Y. 13, 19; Blanco v. Veles, 295 N. Y. 224, 226; Restatement, Trusts, § 84, comment b), payable to said infant plaintiff when and as received by defendant in the proportion that such trust portion bears to the whole amount of the policy. Present — Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ.