In re the Judicial Settlement of the Account of Rutherford

New York Surrogate's Court

In re the Judicial Settlement of the Account of Rutherford

2 Mills Surr. 365, 36 Misc. 314, 73 N.Y.S. 510

DecidedNovember 15, 1901

StatusPublished

This text of 2 Mills Surr. 365 (In re the Judicial Settlement of the Account of Rutherford) 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.

Bluebook

In re the Judicial Settlement of the Account of Rutherford, 2 Mills Surr. 365, 36 Misc. 314, 73 N.Y.S. 510 (N.Y. Super. Ct. 1901).

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Opinion

Fitzgerald, S.

— The testator gave his personal property to his executors in trust to collect, invest and reinvest the same, and pay the income thereof in equal shares to his sisters, Matilda and Louisa Myers, and he directed upon the death of the last survivor of his sisters that one-half of the principal of his [366]*366estate be given to bis partner, John A. Rutherford, and the other one-half to be given to William W. Rutherford. Louisa Myers is still living. Matilda, her sister, died about two years after the testator. John A. Rutherford and William W. Rutherford were adjudged in an action in the Supreme Court entitled to receive during the lifetime of Louisa the onedialf income which remained undisposed of by the death of her sister, and they now claim, by reason of their being entitled to such income in addition to the remainder in the capital held hy them, that they have acquired an absolute title to the one-half of such capital, and are entitled hr the immediate possession of the same. This claim is based upon the supposed, effect of the statutes enabling the beneficiary of the income of a trust fund who has acquired the remainder' therein to abrogate the trust and become possessed of the fund (Laws of 1897, chap. 417, § 3; Laws of 1893, chap. 452). These statutes, in referring to the person entitled to the income of a trust estate, have reference to and relate solely, it seems to me, to one who is so entitled by virtue of the terms of the instrument creating the trust. Here the claimants are not so entitled, but have succeeded to one-half the income of the trust estate accruing since: the death of the beneficiary who had previously enjoyed it, by reason of its not having been disposed of intermediate her death and that of her sister. An interest in income so acquired is not, in my judgment, such an interest as the statutes referred to have in contemplation, or as would entitle its possessor to invoke the benefit of their provisions. If, however, the statutes mentioned are to be taken as applicable in the present case, it is not entirely clear that the right vested at the time: of their enactment in the survivor of the sisters to receive one-half of the income of the entire trust estate and compel the execution of the trust, although the legal and equitable title of the estate was in the trustees, was not such a property interest as would preclude the trustees or the Legislature, without the consent of the benefi[367]*367ciary, from releasing from the trust any part of the property which in its entirety was devoted to the production of the income. The application to do so is, for the reasons stated, denied. The value of counsel’s sen-vices to the trustees in procuring the resignation of one of their number having been agreed upon, reference back to the referee for further evidence will be necessary.

Decreed accordingly.

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Fitzgerald, S.

— The testator gave his personal property to his executors in trust to collect, invest and reinvest the same, and pay the income thereof in equal shares to his sisters, Matilda and Louisa Myers, and he directed upon the death of the last survivor of his sisters that one-half of the principal of his [366]*366estate be given to bis partner, John A. Rutherford, and the other one-half to be given to William W. Rutherford. Louisa Myers is still living. Matilda, her sister, died about two years after the testator. John A. Rutherford and William W. Rutherford were adjudged in an action in the Supreme Court entitled to receive during the lifetime of Louisa the onedialf income which remained undisposed of by the death of her sister, and they now claim, by reason of their being entitled to such income in addition to the remainder in the capital held hy them, that they have acquired an absolute title to the one-half of such capital, and are entitled hr the immediate possession of the same. This claim is based upon the supposed, effect of the statutes enabling the beneficiary of the income of a trust fund who has acquired the remainder' therein to abrogate the trust and become possessed of the fund (Laws of 1897, chap. 417, § 3; Laws of 1893, chap. 452). These statutes, in referring to the person entitled to the income of a trust estate, have reference to and relate solely, it seems to me, to one who is so entitled by virtue of the terms of the instrument creating the trust. Here the claimants are not so entitled, but have succeeded to one-half the income of the trust estate accruing since: the death of the beneficiary who had previously enjoyed it, by reason of its not having been disposed of intermediate her death and that of her sister. An interest in income so acquired is not, in my judgment, such an interest as the statutes referred to have in contemplation, or as would entitle its possessor to invoke the benefit of their provisions. If, however, the statutes mentioned are to be taken as applicable in the present case, it is not entirely clear that the right vested at the time: of their enactment in the survivor of the sisters to receive one-half of the income of the entire trust estate and compel the execution of the trust, although the legal and equitable title of the estate was in the trustees, was not such a property interest as would preclude the trustees or the Legislature, without the consent of the benefi[367]*367ciary, from releasing from the trust any part of the property which in its entirety was devoted to the production of the income. The application to do so is, for the reasons stated, denied. The value of counsel’s sen-vices to the trustees in procuring the resignation of one of their number having been agreed upon, reference back to the referee for further evidence will be necessary.

Decreed accordingly.

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2 Mills Surr. 365, 36 Misc. 314, 73 N.Y.S. 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-judicial-settlement-of-the-account-of-rutherford-nysurct-1901.