In re the Accounting of Halpern

New York Surrogate's Court

In re the Accounting of Halpern

196 Misc. 731, 93 N.Y.S.2d 859, 1949 N.Y. Misc. LEXIS 3015

DecidedNovember 9, 1949

StatusPublished

This text of 196 Misc. 731 (In re the Accounting of Halpern) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Accounting of Halpern, 196 Misc. 731, 93 N.Y.S.2d 859, 1949 N.Y. Misc. LEXIS 3015 (N.Y. Super. Ct. 1949).

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Opinion

Frankenthaler, S.

Testatrix bequeathed the residue of her estate to the accounting executor, in trust, to erect a “ suitable monument on my grave, and to pay, annually, such amount as may be necessary for the proper care and maintenance of our family plot ”. The executor requests a construction of the above provision and permission to transfer sufficient funds to a named religious corporation to have it provide such perpetual care.

[732]*732The court holds that a valid trust was created by the will (Personal Property Law, § 13-a; Matter of Pearsall, 125 Misc. 634), and that a reasonable sura must be devoted by the executor for the purposes specified. He is not required to expend the entire residue therefor, but only such reasonable amount as may be “ necessary ” to provide the requisite care (Matter of Seitz, 103 Misc. 566; Matter of Welch, 105 Misc. 27; Matter of Devine, 147 Misc. 273; 55 A. L. R. 1303). Any surplus residue will pass as intestate property.

The court further holds that the trustee may transfer such sum to a religious corporation, to invest it and apply the income to the maintenance of the plot. A copy of the agreement for such transfer shall be submitted for the approval of the court.

The personal claim of the accounting executor is allowed.

Submit, on notice, decree construing the will and settling the account accordingly.

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Frankenthaler, S.

Testatrix bequeathed the residue of her estate to the accounting executor, in trust, to erect a “ suitable monument on my grave, and to pay, annually, such amount as may be necessary for the proper care and maintenance of our family plot ”. The executor requests a construction of the above provision and permission to transfer sufficient funds to a named religious corporation to have it provide such perpetual care.

[732]*732The court holds that a valid trust was created by the will (Personal Property Law, § 13-a; Matter of Pearsall, 125 Misc. 634), and that a reasonable sura must be devoted by the executor for the purposes specified. He is not required to expend the entire residue therefor, but only such reasonable amount as may be “ necessary ” to provide the requisite care (Matter of Seitz, 103 Misc. 566; Matter of Welch, 105 Misc. 27; Matter of Devine, 147 Misc. 273; 55 A. L. R. 1303). Any surplus residue will pass as intestate property.

The court further holds that the trustee may transfer such sum to a religious corporation, to invest it and apply the income to the maintenance of the plot. A copy of the agreement for such transfer shall be submitted for the approval of the court.

The personal claim of the accounting executor is allowed.

Submit, on notice, decree construing the will and settling the account accordingly.

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196 Misc. 731, 93 N.Y.S.2d 859, 1949 N.Y. Misc. LEXIS 3015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-accounting-of-halpern-nysurct-1949.

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