177 A.D. 184 | N.Y. App. Div. | 1917
The testator, Denis Shea, died on the 13th day of December, 1897, leaving a last will and testament, which was duly admitted to probate on the 28th day of December, 1897, and letters testamentary were duly issued to his widow, Catherine Shea, and to his son, John J. Shea, and his counsin, John B. Shea, named in the will as executrix and executors, and they also became trustees under the will. On the 12th day of November, 1907, on account of the death of the two executors, Catherine Shea was acting as sole executrix and trustee, and on her appplication on that day the petitioner was duly appointed by an order of the Supreme Court a trustee under the will, and he duly qualified and is still acting. On the 25th day of April, 1914, Catherine Shea died, and since that time the petitioner has been acting as sole trustee.
Evidently a question as to his authority as substituted trustee to pay over to or to apply for the benefit of the life beneficiaries a part of the principal of the trusts created for their benefit arose, and on the 28th day of October, 1915, he instituted this proceeding in the Surrogate’s Court praying for a construction of the will in that regard. His petition shows that the only persons interested in the proceeding are Anna E. Shea, a daughter, and Joseph B. L. Shea and Denis B. Shea, sons of the testator, and six grandchildren, who are all children of said Joseph B. L. Shea. The testator’s son, Denis B. Shea, is an incompetent, and when the proceeding was instituted was an inmate of a hospital for the insane at Hamilton, Ont., in the Dominion of Canada. A special guardian was appointed for the incompetent and another for the infants and the hearing was duly adjourned from time to time until the 4th day of April, 1916. The special guardians filed reports also praying for a construction of the will and in addition for an accounting
The petitioner gave notice of a motion returnable on the day to which the hearing on the petition had been finally adjourned for the discontinuance of the proceeding on the ground that pursuant to the advice of counsel he had brought an action in the Supreme Court on the 17th day of March, 1916, both for a construction of the will and for an accounting not only by himself as substituted trustee but also by the executrix of Catherine Shea, and by Joseph B. L. Shea who, the complaint alleged, was accountable for certain rents and other moneys belonging to the estate. These are the reasons assigned for having the accounting in the Supreme Court where the petitioner was appointed.
The surrogate denied the application for the discontinuance of the proceeding, but without taking any evidence made a decree construing the will and awarding to each of the special guardians $400, and denying their application for an accounting on the ground of the pendency of the action in the Supreme Court. Pending the appeal the committee of the estate of the incompetent was allowed to intervene. We think the learned surrogate should have refrained from construing the will as well as from requiring the accounting, but inasmuch as he saw fit to retain jurisdiction to the extent of construing the will, and the points upon which the construction depends have been fully argued we think we may as well construe the will now as to defer action thereon. The nature and extent of the estate is not definitely shown. It appears by an" affidavit of the petitioner that the total value of the assets does not exceed $225,000, and that $83,000 is represented by bonds and mortgages and the balance by real estate, and that the gross income for the year ending December 31, 1915, was approximately $7,800, and the necessary expenditures for that year approxi
The validity of these provisions is not questioned. In so far as they relate to personal property there can be no doubt that a valid trust could be created not only for the use of both income and principal for support and maintenance, but for the application of the principal to the use of the beneficiary without regard to the necessity thereof for support and maintenance (Matter of Wilkin, 183 N. Y. 104); and in so far as they relate to real property, in view of the power of sale, there can be no doubt that a valid trust could be created for the application of both income and principal for the proper and comfortable maintenance and support of the beneficiaries. (Rogers v. Rogers, 111 N. Y. 228; Smith v. Floyd, 193 id. 683, revg. 124 App. Div. 277, on dissenting opinion of Ingraham, J., below.) Although it is conceded that these provisions were valid, it is claimed that by their express terms and by controlling precedents with respect to the construction thereof the authority to make applications of part of the principal was confined to the trustees or trustee named in the will who should be acting. If the testator intended to confer authority on the trustees to pay
The allowances to the special guardians in view of the amount of this estate and the small income therefrom are, we think, excessive and should be reduced by one-half and no allowance
We, therefore, affirm the order denying the application of the petitioner to discontinue the proceeding, but modify the decree construing the will as herein indicated, with costs to the appellant payable out of the estate.
Clarke, P. J., Dowling, Smith and Shearn, JJ., concurred.
Order affirmed and decree modified as stated in opinion, with costs to appellant payable out of the estate. Order to be settled on notice.