In re the First Judicial Settlement of the Account of Proceedings of Lipps

New York Surrogate's Court

In re the First Judicial Settlement of the Account of Proceedings of Lipps

128 Misc. 909, 220 N.Y.S. 770, 1927 N.Y. Misc. LEXIS 878

DecidedMarch 4, 1927

StatusPublished

This text of 128 Misc. 909 (In re the First Judicial Settlement of the Account of Proceedings of Lipps) 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.

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In re the First Judicial Settlement of the Account of Proceedings of Lipps, 128 Misc. 909, 220 N.Y.S. 770, 1927 N.Y. Misc. LEXIS 878 (N.Y. Super. Ct. 1927).

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Opinion

Slater, S.

The testator bequeathed outright to his wife one-third of the residuary estate. He then directed that the rest, residue and remainder, which amounted to two-thirds of the residue, should be held in trust for certain purposes. He further directed that this residue be divided into as many equal parts as he left children him surviving, namely, two, and directed the trustee to pay the income from said parts to his wife, so long as she lives and continues his widow. Upon her death or remarriage, whichever occurs first, “ to pay over the principal of one of said equal parts ” to the daughter Sue, if she shall then be living, and to pay over the income quarterly or oftener of the other equal share to the daughter Anne Estep Dickinson, if she shall then be living.

The widow remarried October 9, 1925. Both of the daughters are alive. The question relates to the equal share or part given to the daughter Anne. No limitation is made with respect to the duration of time in which Anne is to receive this income. Neither is any provision made for the ultimate vesting of the corpus.

The gift of income tends to vest in the beneficiary the capital of which the income is given. (Cammann v. Bailey, 210 N. Y. 19.) “ It is a well settled rule both in this jurisdiction and in England that a gift of income of property without limitation with respect to the time of enjoyment, with no other disposition of the corpus, is intended as a gift of the corpus.” (Matter of Allen, 111 Misc. 93, 125; affd., 202 App. Div. 810; mod. and affd., 236 N. Y. 503, and the cases cited in the opinion; Matter of Hoyt, 124 Misc. 857.)

Submit decree upon this judicial accounting directing the executors to deliver over in fee to the said daughter Anne a one-third part of the residue.

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Slater, S.

The testator bequeathed outright to his wife one-third of the residuary estate. He then directed that the rest, residue and remainder, which amounted to two-thirds of the residue, should be held in trust for certain purposes. He further directed that this residue be divided into as many equal parts as he left children him surviving, namely, two, and directed the trustee to pay the income from said parts to his wife, so long as she lives and continues his widow. Upon her death or remarriage, whichever occurs first, “ to pay over the principal of one of said equal parts ” to the daughter Sue, if she shall then be living, and to pay over the income quarterly or oftener of the other equal share to the daughter Anne Estep Dickinson, if she shall then be living.

The widow remarried October 9, 1925. Both of the daughters are alive. The question relates to the equal share or part given to the daughter Anne. No limitation is made with respect to the duration of time in which Anne is to receive this income. Neither is any provision made for the ultimate vesting of the corpus.

The gift of income tends to vest in the beneficiary the capital of which the income is given. (Cammann v. Bailey, 210 N. Y. 19.) “ It is a well settled rule both in this jurisdiction and in England that a gift of income of property without limitation with respect to the time of enjoyment, with no other disposition of the corpus, is intended as a gift of the corpus.” (Matter of Allen, 111 Misc. 93, 125; affd., 202 App. Div. 810; mod. and affd., 236 N. Y. 503, and the cases cited in the opinion; Matter of Hoyt, 124 Misc. 857.)

Submit decree upon this judicial accounting directing the executors to deliver over in fee to the said daughter Anne a one-third part of the residue.

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128 Misc. 909, 220 N.Y.S. 770, 1927 N.Y. Misc. LEXIS 878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-first-judicial-settlement-of-the-account-of-proceedings-of-lipps-nysurct-1927.

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