157 N.Y.S. 360 | N.Y. App. Div. | 1916
Sarah Akin made her last will and testament on April 13, 1908, and thereby, among other legacies, by the 9th clause thereof gave and bequeathed to her trustees the sum of $25,000 in trust, to invest the same, “ to collect the rents, income and profits thereof, and to pay the net income arising therefrom to my nephew Oscar Clark Miller during the term of his life,” with directions as to the disposition of the principal after his death. Oscar Clark Miller was then married to Julia A. Miller. The answer of the trustees to the petition herein sets up that Miller abandoned his wife and minor son in the month of October, 1908, at Atlantic City in the State of New Jersey, and for that reason decedent executed a codicil to her will on May 12, 1909, the sole change made in the original will being as to the 9th clause thereof containing the bequest of the life estate to Miller. As to this the codicil provided:
“ Second. I revoke the Ninth clause of my said will, and in place thereof I provide as follows: I give and bequeath to my trustees the sum of Twenty-five thousand ($25,000), to Have and to Hold the same for the following uses and purposes: to invest the same in'such securities as are directed in my said will in respect to such sums as are given in said will to my trustees in trust; to collect the rents, income and profits thereof, and in their discretion, and from time to time, to pay the whole of the net income arising therefrom either to my nephew, Oscar Clark*231 Miller, or to his wife, Julia Miller, or a portion of such net income to one, and the remaining portion to the other, during the term of the life of the said Oscar Clark Miller.”
Then followed the provisions as to the disposition to he made of the principal of said trust fund upon the death of Miller, in the happening of certain contingencies. Sarah Akin died on April 29, 1910, and her will and codicil were duly admitted to probate and letters testamentary issued to the executors and trustees named therein, who duly qualified and have continued to act as such. Pursuant to the authority given them by the will and codicil, and exercising their discretion as thereby allowed, the executors and trustees divided the income from said trust fund, amounting to approximately $1,200 per annum, in the proportion of $400 to Miller and the balance to his wife up to and including July 1, 1913. Miller has not contributed to the support of his wife or minor son since October, 1908. On November 3, 1913, Miller, began an action for an absolute divorce against his wife in the Second Judicial District Court of the State of Nevada, in and for Washoe county, based on allegations of jealousy and cruelty on the part of his wife. His complaint in that action showed that they were married in the State of New York on June 15, 1893; that his son was then nineteen years of age, and that he himself had been a resident of the State of Nevada for upwards of six months. Upon Miller’s affidavit that his wife resided at Atlantic City, in the State of New Jersey, an order was made for the publication of the summons in the Eeno Evening Gazette and for the mailing of a certified copy of the complaint to his wife at an address given in Atlantic City, N. J. The petitioner presented proof of personal service of a certified copy of the complaint, attached to a copy of the summons, upon his wife at Atlantic City, N. J., but offered no proof of publication or mailing, and has produced no Nevada statute authorizing a departure from the terms of the order of publication. Mrs. Miller never appeared or answered in the Nevada action, and on December 23, 1913, the Nevada court gave judgment in favor of Miller dissolving the marriage between him and his wife and freeing each of the parties “from the bonds of matrimony and all of the obligations thereof.” Then on December 27,1913, his New
By the terms of the codicil the executors and trustees were explicitly empowered, in their discretion, to pay the'whole of the net income to Julia Miller, and having determined to exercise that discretion in her favor, their decision cannot he disturbed. The decree appealed from will, therefore, be affirmed, with costs.
Clarke, P. J., Scott, Smith and Page, JJ., concurred.
Decree affirmed, with costs.