In re the Estate of Foster

| N.Y. Sur. Ct. | Feb 15, 1900

Fitzgerald, S.

As there is no power in this court to entertain an application seeking or requiring instructions or directions to he given to a trustee as to the manner of the execution of his trust, I have treated this as an application made under section 2804 of the Code of Civil Procedure. The section only authorizes the surrogate to direct a payment out of income in the hands of the trustee or presently payable by him. The income in the hands of the trustee, as shown by the papers submitted, amounts to $4,081.05. This income cannot be paid to the beneficiaries, as I deem it wholly applicable to the reimbursement of the principal of the trust estate on account of the expenditures in excess of that amount made therefrom and which should be borne by the income. The balance of the proceeds of the sale of the leasehold mortgage, mentioned in the respondent’s answer, is part of the corpus of the estate, and, of course, cannot be used for the benefit of the beneficiaries. The firm of Lark, Sons & Co., which appears herein, is the holder of an instrument purporting to assign, or which it might be claimed assigns, to it the interest of two of the beneficiaries in the income of the trust fund. These beneficiaries are not before the court except by the appearance of an attorney who represents the assignee. His appearance for the beneficiaries is claimed to be authorized by his selection by the assignee by virtue of a power contained in the instrument making the assignment. In view of the nature of that instrument, I do not think that I would be justified in treating such selection and appearance as sufficient to dispense with the citation of the beneficiaries or the acquisition of jurisdiction over them in some other proper way. They, by the instrument referred to, attempted to transfer income to which they would become entitled under a trust created for their benefit, so that, even if they had been cited or were represented by an attorney unquestionably authorized to appear for them, no part of their income, if there were any to which they are now entitled, could be distributed to their assignee (Tolles v. Wood, 99 N.Y. 616" court="NY" date_filed="1885-04-21" href="https://app.midpage.ai/document/tolles-v--wood-3610245?utm_source=webapp" opinion_id="3610245">99 N. Y. 616; Cass v. Cass, 15 A.D. 235" court="N.Y. App. Div." date_filed="1897-03-15" href="https://app.midpage.ai/document/cass-v-cass-5182047?utm_source=webapp" opinion_id="5182047">15 App. Div. 235; Matter of Edson, Surr. Decs., 1897, p. 671); and, under the circumstances, I should not feel at liberty to direct the payment of such income to the assignee under his claim to be entitled to it as the attorney in fact of the beneficiaries. This application is made by one of the beneficiaries, who, in the prayer of his petition, asks for the same relief in behalf of the other beneficiaries as he seeks for himself. The others, with the exception of the two above referred to, appeared or were cited in this proceeding. While all the beneficiaries and their assignees are, no doubt, proper parties thereto (§ 2806, Code Civ. Pro.), it is very doubtful whether such relief as might be granted under section 2804 of the Code of Civil Procedure, which is the statute under which I have ■entertained the proceeding, is not exclusively confined to the petitioner.

Application denied.