In re the Judicial Settlement of the Account of May

9 Mills Surr. 138, 76 Misc. 103, 136 N.Y.S. 335

• Court: New York Surrogate's Court
• Decided: March 15, 1912
• Status: Published

Opinion

Ketcham, S.

The will under which accounting is made created a trust under which the trustee was directed to ejpend from the income “ such sums as she may think proper and judicious for the care, maintenance and education ” of the daughter of the testatrix during her minority, “ or during so much thereof as she shall be and remain under the care and in the custody and control ” of the said executrix and trustee. This provision was qualified as follows:

“ But if, for any reason, my said daughter shall not, during any part of her minority, be or remain under the care and in the custody or control of my said executrix and trustee, then for the period of such absence therefrom, I direct that no payment be made by my executrix and trustee for the care, maintenance and education of my daughter in any way, until she shall have reached the age of eighteen years, after which event and until she shall reach the age of twenty-one years, my executrix and trustee is hereby directed to expend, from the income of my estate, a sum not exceeding ten dollars per week for the care, maintenance and education of my said daughter. * * *

“ Upon the arrival of my said daughter at the age of twenty-one years, I direct my said executrix and trustee to-render to her an account of all my estate both real and personal as the same shall then exist, and thereafter at stated intervals, and at least every three months, during the life of my said daughter, to pay over to her the entire income of my estate * * * to be held and enjoyed by my said daughter as her own property.”

The daughter came of age on May 5, 1911, and the question now arises as to the disposition of income upon the trust accrued during her minority and not applied.

The daughter is entitled to the accrued income. If the will be regarded as containing an implied direction for accumulation during her minority for her benefit, upon attaining majority, the income is hers by virtue of the will. If no-valid direction for accumulation can be found in the will, the same result will follow under the authority of Pray v. Hegeman, 92 N. Y. 508.

The only element in the case cited which differs from the case at bar is that in that case there was an attempted provision for accumulation which was held to be void, while here, at present, it is assumed that there was no direction whatever for an accumulation.

In that case the provision of the will, in its application, to several children, was in part as follows: “ While such child remains under eighteen years of age, such an annual sum as his or her guardians shall think necessary, not, however, to exceed $700, shall be applied to his or her education and support; and while such child remains between the ages of eighteen and twenty-one years, such an annual sum as his or her guardian shall deem necessary, not exceeding $1,000, shall be applied to his or her education and support.”

The will there further provided that, after arrival at the age of twenty-one years, by any one of the testator’s children, the whole of the income of the share held in trust should be paid over quarter-yearly to such child.

The Court of Appeals said: “ The testator directs that during minority a certain fixed sum shall he applied out of the rents, profits and income of the share of the son, for his education and maintenance, and on his majority he gives the whole income to the son for life. This may be treated as creating an equitable expectant life interest or estate in the son, in the share devised to his use, from and after his arrival at majority, and as constituting the next eventual estate within the fortieth section (now Real Property Law, § 63), in the property out of which the income arises.”

Upon this language, in view of the peculiar parallel between these two cases, it cannot be doubted that, whether under a valid direction for accumulation, or in the abesnce thereof, the income remaining in the trust at the time when the daughter attained majority was payable to her; and a direction to this effect should be embodied in the decree.

Decreed accordingly.