In re the Judicial Settlement of the Accounts of Trelease

115 A.D. 654, 100 N.Y.S. 1051, 1906 N.Y. App. Div. LEXIS 3033

Opinion

Gaynor, J.:

' It is. not easy to see what grievance the appellants assert or why they, appeal. They are the residuary legatees of the testator, and one of them is coexecuto.r of the testator’s will. By his will the testator left an. amount of personalty to his wife, this executrix, to have the income for. her life, and with “ the right to use the principal if she may need it.” In administering the. estate she has paid over to herself $1,600 under this bequest, and in her account'credits herself as executrix therewith, the words being, “ I have paid to myself as legatee of said deceased under and by virtue of said will the sum of,” etc.

This is correct. She has a right under the will to receive the personalty bequeathed to her as aforesaid, and invest it and use the income,- and also to use the principal if she needs it. On her death the residuary legatees will be entitled to aiiy of it that remains. Meanwhile she is their trustee of the fund (Rose v. Hatch, 125 N. Y. 427; Leggett v. Stevens, 185 id. 70).

There is also an appeal from an order of the surrogate, denying a motion of the coexecutor that he have joint custody of the fund with the executrix. She is given full posséssion and control by the will in the way above stated and is entitled to it.

The decree and order should be affirmed, with costs.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Decree and order of the Surrogate's Court of Kings county affirmed, with costs.