184 A.D. 274 | N.Y. App. Div. | 1918
Lead Opinion
The action was brought to settle the accounts of the trustees of a trust created by the 5th paragraph of the will of Sylvester J. Curtis, deceased, and for a construction of the will in respect to the trust provision. It was referred to a referee to hear and determine, and the accounts were stated and allowed. There is no question as to the statement of the account. The sole question is as to the construction of the will and the distribution and payment over of the funds on hand. The creator of the trust, Sylvester J. Curtis, died in September, 1899, leaving him surviving his widow, the respondent Harriet A. Curtis, his son, Thomas E. H. Curtis, now deceased, and his daughter, the respondent Harriet Louisa Curtis. Thomas E. H. Curtis died on August 30, 1915, intestate, leaving him surviving his daughters, the appellants Ada Florence Curtis, Sylvia J. Curtis and Harriet Louise Curtis, and letters of administration on his estate were thereafter granted to said Harriet Louise Curtis. Sylvester J. Curtis, by his will, after giving certain directions to his executors and certain legacies to his grandchildren, gave his stock exchange seat and
The trust provision in question is as follows:
“Fifth. I give and bequeath to my trustees hereinafter named, one-sixth of all the cash, stocks and bonds I may own at the time of my decease, in trust, to keep the same invested as the same now are so long as it is prudent and safe, and to invest and keep invested the cash portion, if any, of said one-sixth of said cash, stocks and bonds invested for the use and benefit of my daughter, Harriet Louisa Curtis, during her life, the interest and income of said investments and property or such much thereof as may be necessary I direct my said trustees to expend in and about the care and comfort of my said daughter during her life, and from said income to advance to her personally such sum or sums of money, at such time or times as she may wish, and as to my said trustees seems proper.
“ Upon the death of my said daughter' without leaving any child, children or descendants of child or children, I give the said one-sixth of my estate and any accumulations thereon to my wife and son Thomas, equally: should my said daughter die leaving a child or children I give the same to such child, if more than one in equal parts, children of a deceased child to take his or her parent’s share.”
The said Harriet Louisa Curtis, for whose benefit the trust is created, is more than sixty years old, is unmarried and has always lived with her mother. She is and for many years has been an invalid, and receives the care and attention of her mother, who supervises and directs on her behalf the expenditure of the income received from the trust.
The trust fund in question amounted to about $63,000, and, because of the fact that the life beneficiary lived with and was cared for by her mother, her needs were so moderate
Dowling, Smith and Merrell, JJ., concurred; Page, J., dissented.
Dissenting Opinion
I dissent. In my opinion there is an illegal accumulation of income and a direction for its distribution to others than the life tenant, and the accumulated income belongs to the life tenant.
Judgment so far as appealed from modified as indicated in opinion. Order to be settled on notice.