In re the Construction of the Will of Murphy

1 A.D.2d 737, 146 N.Y.S.2d 848, 1955 N.Y. App. Div. LEXIS 3766

Opinion

Appeal from a decree of the Surrogate’s Court of Chenango County, which construed a trust provision in the will of decedent and determined that petitioner, as a beneficiary, has the sole discretion to invade the trust principal for her proper support and maintenance, and the right to sell real property of the estate for that purpose. The clause of decedent’s will that comes into question reads as follows: “ Tenth: All the rest, residue and remainder of my estate, both real and personal and wheresoever situate, together with the use, rents and income thereof, I give, devise and bequeath to my sister, Mary Murphy Thomas, for and during the term of her natural life. I direct that she shall have the right to dispose of and use such portion of the same as may be necessary for her proper support and maintenance.” It is the argument of appellant that the amount of any principal expenditures for the support of the beneficiary should be fixed by the Surrogate’s Court. We think to the contrary that the language of the trust provision and the authorities sustain the decision of the Surrogate (Holden v. Strong, 116 N. Y. 471; Rezzemini v. Brooks, 236 N. Y. 184; Matter of Woollard, 295 N. Y. 390). Decree unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ.