Suesens v. Daiker

117 A.D. 668, 102 N.Y.S. 919, 1907 N.Y. App. Div. LEXIS 317

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1907
• Status: Published

Opinion

Houghton, J.:

Appellant is an infant whose mother died leaving a last will' and testament of which respondents are executors and trustees, which provided that the residue of her estate should be invested and the "income applied to the maintenance and support of appellant during his minority, and on his arriving at the age of twenty-one-years any accumulations from the income and the principal to be paid over to him or his issue.

The moving papers disclose that the appellant is only three years of age and in such ill and unfortunate condition that he requires more than ordinary care. The motion was for an order directing the executors and trustees -to apply the income, which amounts to about $1,500 per annum, and what has accumulated in the hands of the trustees, to the payment of past expenses incurred in the care of appellant, and for the fixing of a sum to be regularly paid in the future for his support and maintenance. The motion was denied on the ground that the papers did not disclose the financial inability of the father to adequately support his child.

The language of the will of the mother shows her intention that her child or children should be supported from the income of her residuary estate if there was a necessity to resort to such a source. If the earning capacity and financial ability of the father is inadequate to properly care for appellant, such part of the income as is necessary should be applied to that purpose.

On another motion the facts and circumstances can be fully developed, and to that end we think the order should be modified by permitting a renewal of the motion upon additional papers.

We express no opinion with respect to the propriety of paying past expenditures. . That, matter can he determined when it more fully appears how they were incurred, and for what .and by whom. paid. •

The order should be modified by giving the appellant leave to renew on additional' papers, and as ’so modified affirmed, without costs.

Patterson, 'P. J., Ingraham, Láhghlin and Lambert, J.J., cbncurred.

Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.