184 Misc. 250 | N.Y. Sur. Ct. | 1945
Testator, in creating a testamentary trust for the benefit of his daughter, Mary J. Payne, made manifest his knowledge that she was then incompetent by his statement in' the will that he intended the income of the trust should be expended for her care and benefit during her life, “ if she is unfitted to receive it and use it for her best interests ”. He died in 1926. This daughter has been a patient in the Eochester State Hospital since 1930.
In its petition the hospital is described as interested in the estate of the decedent for reimbursement of moneys expended for the care and treatment of Mary J. Payne, which pursuant to the trust clause in said decedent’s will, is alleged to be a charge upon said estate. The trustee thereupon not only filed his account as such, but also brought in as parties in the accounting proceeding all persons interested in the estate, including in the list the claimant hospital for its claim for $2,361.99 for care and treatment of said patient. This left no ground for the objection to the status of this claimant in the accounting proceeding. The objectant stressed mainly his contention that the petitioner could not now ask the court to construe the will in reference to whether or not the testator intended the trustee should pay the income to the hospital. The objection is based on the claim that the statutes do not expressly permit a “ creditor ” either to compel a trustee to account, or to ask that the will be construed. The present case is unusual in that the petitioner alleges that the will indicates the testator intended the trust income to be used for the daughter expressly because she was, or was likely to become incompetent.
While it is true, as a general rule, that no “ creditor ” of a legatee, nor even of the testator, comes within the definition of that term (Surrogate’s Ct. Act, § 314, subd. 10), as one of the persons “ interested ” in the fund, as the basis on which to petition for compulsory accounting by a trustee can be asked for (Surrogate’s Ct. Act, § 259, subd. 3), still the trustee in filing his account on the petition of the claimant, and bringing in all other parties in interest, was estopped to question the status of the petitioner to compel the accounting. The petitioner had gone further by alleging the testator intended such a claim as that of the hospital should be a charge upon this trust estate. Here again the objector seems to be relying mainly on the general rule, without regard to the unique feature of this trust provision insofar as it refers to the incompetence of the life beneficiary. As a general rule, a creditor of testator, or of his executor for administration expenses, cannot ask that the will be construed, presumably on the theory that such obligations must first be paid
On notice, enter an order in accord with this decision and also setting the matter down for hearing or other disposition on the adjourned calendar for Friday, February 16, 1945.