Simpson v. Moore

30 Barb. 637, 1859 N.Y. App. Div. LEXIS 50

Opinion

Ingraham, J.

In this case I am of the opinion that the testator intended all the income of the property which he or dered to be invested should be paid to the wife, but that the capital so invested should be preserved.

[New York Special Term, December 23, 1859.

Under the case of OlarJcson v. Clarkson, (18 Barb. 646,) the payments in question must be considered as dividends; but as they contained part of what was held as capital when the stock was purchased, so much thereof as was necessary to make up the original investment, over and above the par value of the stock taken by the trustee in exchange, should be retained, by him, and the residue belongs to the plaintiff.

If the parties do not agree on the amount to be retained by the trustee, a reference will be ordered by the court on settling the order.

The costs of the parties to be paid out of the fund; such costs as to the defendant Oipriant only to be paid, down to the time of the decease of his wife.

Ingraham, Justice.]