149 Misc. 182 | N.Y. Sur. Ct. | 1933
Two questions of testamentary interpretation, and three objections to the account of the executors, interposed by the special guardian, are here 'presented for determination. The difficulty which the parties apparently experience regarding the proper interpretation of subdivision “ B ” of item 14 of the will is due to their failure to recall the fundamental principle of construction, that in the absence of a clear demonstration to the contrary, words of survivorship and gifts over on the death of the primary beneficiary are construed to relate to the death of the
The provisions of subdivision “ C ” of the same item are so clear that the court finds difficulty in stating a paraphrase for the directions which would be more so. A trust is erected measured by the life of Berthe Auperin, the income therefrom being payable, one-third to Bertha for life, and two-thirds to her son, Gaston, for his fife. In the event that Gaston predeceases the person upon whose life the trust is measured, his portion of the income is payable to his children until the termination of the measuring life, when the principle becomes the absolute property of such children. In the event that there are no children, the principal is to be disposed of in accordance with an alternative direction.
The special guardian originally interposed five objections to the account. He has withdrawn Nos. 3 and 4 and the remainder must be sustained upon the admitted facts of the case. The first two relate to commissions deducted by the attorney for the executors from income received by the estate subsequent to the death of the testatrix. These commissions were merely for the service of collecting the income which was an executorial function and duty. It is primary that any payment made by executors to others for the performance of the duties which they are legally bound to perform must be paid from their own pockets. (Matter of Lester, 172 App. Div. 509, 519.) The executors will accordingly be surcharged with such payments.
The final objection relates to the investment by the executors in mortgages and participation certificates. In view of their obligation to pay over the funds in their charge within a very brief space of time, their investment in such securities possessing no ready and established market and maturing at distant dates, was improper. (Matter of John M. Blake, 146 Misc. 776, 779, 780; Matter of Sarah Blake, 146 id. 780, 783-785; Matter of Flint, Slater, S., 148 id. 474, 485.)
Since, however, the same persons are named as executors and trustees, the accountants may,! if they elect, recast their account
Proceed accordingly.