133 Misc. 554 | N.Y. Sur. Ct. | 1929
The questions raised in this accounting proceeding are disposed of as follows:
(1) I hold that the executors are entitled to commissions upon the sale price of the real estate located on Thirty-second and Thirty-third streets, New York city, after deducting therefrom the sum of $400,000. Such sum of $400,000 was the amount of the mortgage originally upon said property which was paid off by the executors out of other funds of the estate prior to the sale of the property. It thus constituted merely a change in the form of the investment of a portion of the estate from cash to real property.
(2) There is nothing in the will of testatrix to indicate that she intended that the beneficiaries of the trust created by paragraph 8, subdivisions 7th and 8th, should receive no income until the real property was sold. On the contrary, her intention appears to be that they should receive income from the date of her death. Such intention may be found, for instance, in the provisions for the benefit of Florence L. Redfield, where a part of the principal was directed to be paid to the beneficiary at the end of five years from the date of death of testatrix, and the balance of principal at the
(3) I hold that paragraph 10 of the will is void, and, therefore, does not change or modify in any respect the legacies given by paragraph 8 of the will.
Submit decree construing the will arid settling the account accordingly.