1 Mills Surr. 491 | N.Y. Sur. Ct. | 1900
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
Application denied.