100 N.Y.S. 1098 | N.Y. Sur. Ct. | 1906
The legal estate for his life, devised to "the hus>band of the testatrix by the third clause of her will, did not suspend the power of alienation for any period or for any pur
It is also contended that the will offends the statute as to successive life estates. This statute is as follows: “ Successive estate for life shall not be limited, except to persons in being at the creation thereof; and where a remainder shall be limited on more than two successive estates for life, all the life
The referee erred, however, in treating the decree of this court made, on default of objections thereto-, in October, 1900, as conclusive upon the objectant as to her contention that the-capital of the- trust had improperly been used -since the date of' that decree, in making payments to beneficiaries of the trust, instead of making good therefrom capital which, before that decree, had been applied in discharging taxes and defraying-other expenses-which should have been paid out of income. The-decree of a surrogate is- not conclusive upon the parties in establishing a rule of law which will control in the later administration of the estate. If not appealed from, it will serve as a complete protection to the accounting executor or trustee, against all of the parties duly cited, as to all questions concerning the correctness of his- accounts thereby approved and the disbursements therein directed; but the jurisdiction of the surrogate to construe'the will of the testator or to- define or declare the rights of the beneficiaries of a trust as between themselves is limited' to the necessities of the accounting then before the surrogate. Bowditch v. Ayrault, 138 N. Y. 222, 231; Matter of Hoyt, 160; id. 607, 618; Matter of Perkins, 75 Hun, 129; affd. on opinion
At the time when the disbursements from capital were made, which are complained of, the income in the hands of the trustees was entirely insufficient to make them. The use of capital to pay the obligations of the persons then entitled to income should have been corrected by turning over income subsequently eolleced to the account of principal, and this may be done in the decree in this proceeding. So much of the referee’s report as concerns these matters is reversed, and the proceeding will be set down before me on July second, at ten-thirty a. m., for further hearing with respect thereto. • Notice of such hearing should be served.
Decreed accordingly.