127 Misc. 202 | N.Y. Sur. Ct. | 1926
In this accounting proceeding a construction of paragraph 2 of the codicil to the testator’s will is requested. That paragraph reads as follows:
The testator’s son Fred W. Sewell died on January 23, 1922, survived by his wife, Blanche, and their son, Barton Sewell, 2d, an infant now about twenty years of age. The infant has been and is now residing with his mother in the family household. 1 The principal of the trust fund involved approximates $1,000,000. The question to be determined is: Who is entitled to the income earned by the trust from the date of the death of Fred W. Sewell to the termination of the trust, to wit, the date when Barton Sewell, 2d, attains the age of twenty-five years, or upon his death prior thereto?
I hold that by the use of the words “ for the hying expenses of himself and family ” the testator intended that such income must be paid for the support of the widow and son of Fred Sewell. (Haynes v. Sherman, 117 N. Y. 433; Oberndorf v. Farmers’ Loan & Trust Co., 208 id. 367; Ireland v. Ireland, 84 id. 321; Matter of Yard, 116 Misc. 19.) The gift was intended for the joint support of Fred Sewell’s family. The direction to pay the income for that purpose was not a personal benefit for the son of the testator, but payment was to be continued after his death until the date fixed for the termination of the trust. In Haynes v. Sherman (117 N. Y. 433, 436) there was a gift “ to my wife Catharine M. Sherman, in trust, nevertheless, to have and to hold the same and use so much of the income and principal as she may deem necessary for her support and the support of our children, until our youngest child now living shall arrive at the age of twenty-one years.” The Court of Appeals
Incidentally, it should be stated that the Surrogate’s Court possesses complete equitable jurisdiction in an accounting proceeding such as the pending matter. At the time of the death of Fred Sewell his family was composed of his wife and his son, Barton, and in accordance with the decisions cited, the amount of income fixed by the trustees must be paid to the widow as the head of the family. The trustees in their discretion by a written certificate filed in the proceeding, have fixed that amount at the sum of $35,000 per annum. The decree should direct the payment of such annual allowance from the date of death of the father, Fred Sewell, January 23, 1922, to reimburse the mother for her expenditures for the family maintenance. I hold further that the income which had accrued up to the death of Fred Sewell is payable to his estate. (Bloodgood v. Lewis, 209 N. Y. 95.) The difference between the amount fixed by the trustees for the support of the family and the amount earned by the trust fund may lawfully be accumulated
Submit decree on notice accordingly.