195 Misc. 457 | N.Y. Sur. Ct. | 1949
The court holds that decedent’s will contains an express stipulation against apportionment of accrued income pursuant to section 204 of thé Surrogate’s Court Act. In the eighteenth paragraph of the will it is directed that upon the death of the income beneficiary therein named the principal “ and any unexpended income thereof ” be paid over to the beneficiary’s children in such proportions as she might appoint. The quoted expression is used again in the first codicil to the will in disposing of the fund in the event of the beneficiary’s death without issue. In Matter of Krauthoff (265 N. Y. 477) a testamentary provision that the remaindermen be paid the trust estate “ including income therefrom not paid over to my said wife [the life tenant] ” was held to constitute an express stipulation against apportionment of accrued income. In Matter of Waldbridge (192 Misc. 746) a like determination was made in construing a direction that the remaindermen be paid the principal of the trust fund and “ any undistributed income.” The text in the will of decedent is but a paraphrase of the locutions employed in the wills under consideration in the cited cases.
The objections to the account of the trustee having been withdrawn by stipulation, a decree may be submitted on notice settling the account and construing the will in accordance with this and the prior decision' herein.
