In re the Judicial Settlement of the Account of Proceedings of Guaranty Trust Co.

Appellate Division of the Supreme Court of New York

In re the Judicial Settlement of the Account of Proceedings of Guaranty Trust Co.

254 A.D. 846, 6 N.Y.S.2d 341, 1938 N.Y. App. Div. LEXIS 7926

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 24, 1938

StatusPublished

This text of 254 A.D. 846 (In re the Judicial Settlement of the Account of Proceedings of Guaranty Trust Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Judicial Settlement of the Account of Proceedings of Guaranty Trust Co., 254 A.D. 846, 6 N.Y.S.2d 341, 1938 N.Y. App. Div. LEXIS 7926 (N.Y. Ct. App. 1938).

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Opinion

Untermyer, J.

(dissenting in part). I concur in the conclusion of the surrogate, that in the absence of an express restriction in the donor’s will the donee's power to appoint a fee included power to appoint a lesser estate. I do not agree, however, that power existed to appoint future estates to issue of the donee’s children who were not in existence at the death of the donee, at which time the trustees were required “ to pay and divide ” the principal of the trust. The provisions of the will of James B. Kennedy are, in our opinion, distinguishable from [847]*847those under consideration in Hillen v. Iselin (144 N. Y. 365) on which the surrogate relied.

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Untermyer, J.

(dissenting in part). I concur in the conclusion of the surrogate, that in the absence of an express restriction in the donor’s will the donee's power to appoint a fee included power to appoint a lesser estate. I do not agree, however, that power existed to appoint future estates to issue of the donee’s children who were not in existence at the death of the donee, at which time the trustees were required “ to pay and divide ” the principal of the trust. The provisions of the will of James B. Kennedy are, in our opinion, distinguishable from [847]*847those under consideration in Hillen v. Iselin (144 N. Y. 365) on which the surrogate relied.

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Bluebook (online)

254 A.D. 846, 6 N.Y.S.2d 341, 1938 N.Y. App. Div. LEXIS 7926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-judicial-settlement-of-the-account-of-proceedings-of-guaranty-nyappdiv-1938.

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