45 Misc. 83 | N.Y. Sur. Ct. | 1904
Judicial settlement, upon which several objections have been tried. The objections to payments to counsel for the executors are not sustained. The'objection to the allowance of the claims of Mrs. Knibbs is not sustained. If, under the Smith Case, 153 N. Y. 124, 47 N. E. 33, some evidence was received which was incompetent under section 829, Code Civ. Proc., there is sufficient other evidence to sustain the claims, and to justify the allowance and payment of the same by the executors.
The will of deceased provides for the division of his residuary estate into four parts, “one of said equal parts to be retained by my executors and executrix hereinafter named, in trust, nevertheless, to invest and reinvest the same in good interest bearing securities and to pay the net income arising therefrom to my said son, William H. Knibbs, so long as he shall live.”
As a result of considerable unsuccessful litigation conducted by the said son, the executors have two judgments for costs against him, which they now ask to be directed to satisfy from the income as it shall accrue in their hands as trustees for said sum. It is conceded that such income will not be sufficient for the son’s support. Whatever equitable lien the executors might have to satisfy a debt due to their testator, it by no means follows that they have a right of retainer from income -of a trust fund to satisfy a judgment for costs against the beneficiary. The cases which maintain the right of retainer are based upon the
Decreed accordingly.