In re Hilton

Appellate Division of the Supreme Court of New York

In re Hilton

174 A.D. 193, 160 N.Y.S. 55, 1916 N.Y. App. Div. LEXIS 7583

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

DecidedJuly 10, 1916

StatusPublished

Cited by19 cases

This text of 174 A.D. 193 (In re Hilton) 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

In re Hilton, 174 A.D. 193, 160 N.Y.S. 55, 1916 N.Y. App. Div. LEXIS 7583 (N.Y. Ct. App. 1916).

Pincite

Opinion

Smith, J.:

The will provides that the trustees may “pay out or pay over or apply so much and such parts thereof [Albert B. Hilton’s interest] as they may from time to time consider necessary, proper or expedient for the support and maintenance of the said Albert and his wife and children during his life.” This allowance to Albert B. Hilton and his family may be made by the trustees either from the income or from the principal. The trustees have in fact paid to Albert B. Hilton and his family all of the accumulated income, so that now they are encroaching upon the principal, and in order to support the family they are allowing $36,000 a year for that purpose now, and also $7,000 for a married daughter. The petitioner, a son, now makes application for an additional $7,000, and the court has directed the trustees to pay him $4,000 a year in addition to what is paid to Albert Hilton and the family. The trustees have appealed, insisting that the discretion is left solely with them and not with the court. It would seem that this contention is sound, and that the discretion of the trustees governs, at least unless they Anise their trust.

The cases cited by the respondent here are none of them cases in which the amount of the allowance was specifically left to the discretion of the trustees, as in the case at bar.

In Matter of Akin’s Estate (145 N. Y. Supp. 1105). Surrogate Eowler stated the rule that where testamentary trustees were given discretion under a will the court will not interfere with the reasonable exercise of that discretion. This testator, as he had the right to do, left to the discretion of the trustees what amount should be paid out for the support of the family [195]*195of Albert B. Hilton. Ho evidence is adduced even tending to show an abuse of that discretion. Until such fact is shown the law will leave the petitioner where the deceased left him, to convince the trustees that his claim is reasonable under all the circumstances of the case.

The order of the surrogate should be reversed, with costs, and the proceeding remitted to the Surrogate’s Court for action in accordance with this opinion.

Clarke, P. J., McLaughlin, Scott and Page, JJ., concurred.

Order reversed, with costs, and proceeding remitted to surrogate for further action in accordance with opinion.

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Smith, J.:

The will provides that the trustees may “pay out or pay over or apply so much and such parts thereof [Albert B. Hilton’s interest] as they may from time to time consider necessary, proper or expedient for the support and maintenance of the said Albert and his wife and children during his life.” This allowance to Albert B. Hilton and his family may be made by the trustees either from the income or from the principal. The trustees have in fact paid to Albert B. Hilton and his family all of the accumulated income, so that now they are encroaching upon the principal, and in order to support the family they are allowing $36,000 a year for that purpose now, and also $7,000 for a married daughter. The petitioner, a son, now makes application for an additional $7,000, and the court has directed the trustees to pay him $4,000 a year in addition to what is paid to Albert Hilton and the family. The trustees have appealed, insisting that the discretion is left solely with them and not with the court. It would seem that this contention is sound, and that the discretion of the trustees governs, at least unless they Anise their trust.

The cases cited by the respondent here are none of them cases in which the amount of the allowance was specifically left to the discretion of the trustees, as in the case at bar.

In Matter of Akin’s Estate (145 N. Y. Supp. 1105). Surrogate Eowler stated the rule that where testamentary trustees were given discretion under a will the court will not interfere with the reasonable exercise of that discretion. This testator, as he had the right to do, left to the discretion of the trustees what amount should be paid out for the support of the family [195]*195of Albert B. Hilton. Ho evidence is adduced even tending to show an abuse of that discretion. Until such fact is shown the law will leave the petitioner where the deceased left him, to convince the trustees that his claim is reasonable under all the circumstances of the case.

The order of the surrogate should be reversed, with costs, and the proceeding remitted to the Surrogate’s Court for action in accordance with this opinion.

Clarke, P. J., McLaughlin, Scott and Page, JJ., concurred.

Order reversed, with costs, and proceeding remitted to surrogate for further action in accordance with opinion.

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Bluebook (online)

174 A.D. 193, 160 N.Y.S. 55, 1916 N.Y. App. Div. LEXIS 7583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hilton-nyappdiv-1916.

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