109 Misc. 523 | N.Y. Sur. Ct. | 1919
This is a proceeding instituted by Edward B. Thomas and Eleanor T. Beekman, children of the above named deceased, for an order directing the trustees to pay over to them a fund amounting to $29,819.24, which is now held by said trustees as part of a sinking fund to amortize 2,250 bonds of the par' value of $1,000 each of the Chicago, Indianapolis and Louisville Bailway, which were purchased by the testator at a premium. By the terms of the will the trustees were directed to pay over to the testator’s widow, Ann A. Thomas, the sum of $100,000 a year during her life. The two petitioners were entitled to the income from the residuary estate during their lives, with remainder over to their issue if any. The Chicago, Indianapolis and Louisville Bailway bonds aforesaid were not purchased by the executors or trustees, but were investments made by the testator during his life, and were received by the executors as part of his estate. There is no provision in the will either impliedly or expressly requiring the setting up of the sinking fund, and the life beneficiaries are therefore entitled to the full income derived therefrom, without any deduction for a sinking fund. Kemp v. Macready, 165 App. Div. 124; Robertson v. De Brulatour, 188 N. Y. 301. The trustees admit that they were in error
Decreed accordingly.