In re the Estate of Eggers

167 Misc. 66, 3 N.Y.S.2d 474, 1938 N.Y. Misc. LEXIS 1454

• Court: New York Surrogate's Court
• Decided: March 3, 1938
• Status: Published

Opinion

Delehanty, S.

Through foreclosure of mortgages, the trustees acquired three parcels of realty. Advances were made from principal account to cover the cost of foreclosure expenses, arrears in taxes and improvements to these properties. These advances were not repaid to principal from the surplus rents thereafter collected. On the contrary, all surplus rents were distributed to the life beneficiary. The remaindermen assented in writing to an arrangement whereby the capital account would never be reimbursed for its advances notwithstanding the decisions of the Court of Appeals in Matter of Chapal (269 N. Y. 464) and Matter of Otis (276 id. 101). This agreement is of no effect. The remaindermen were powerless to authorize the transaction as contemplated since it would constitute a partial destruction of the trust. (Matter of Wentworth, 230 N. Y. 176.) The trustees are surcharged for the surplus rents paid in respect of each property to the life beneficiary up to the total amount of capital advances in respect of each parcel.

The resignation of Henry Schmidt as trustee is allowed and Robert H. Mackey is appointed as his successor.

The decree on accounting has been signed.