In re the Judicial Settlement of the Account of Berndt,

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Notebook

| N.Y. Sur. Ct. | Feb 15, 1918

Schulz, S.

Upon the judicial settlement of the account of an executor, it becomes necessary to construe the will of the decedent in order that a proper *647decree of distribution may be entered. The provisions of the will concerning which'a doubt has arisen are as follows:

“ Ninth. I give and bequeath the Sum of Bight Thousend Dollar $8000.00 City Bonds to my Grandoughter Lillian Hansing Which she is to recive at the age of Twentyone years the interest derived from the $8000.00 to be used for her Support durin her Minority I appoint Mr. Charles R Bauerdorf her Guardian but in case of the Death of Lillian Hansing I, give devise and bequeth her Share to my Three Children Anna F. Berndt Rosino McCoy and Charles G. Berndt to be devided between them Share and Share alike.”

The only question which it is necessary to determine upon this accounting is to whom the legacy above mentioned is to be distributed at this time. The other matter touched upon in the brief of the respondent, namely, whether the death of the infant referred to in the paragraph stated meant her demise before or after the death of the decedent, may never require consideration.

The infant’s father is living—hence the attempted appointment of a guardian by the decedent was ineffectual for that purpose. Dom. Rel. Law, § 81, being Laws of 1909, chap. 19, and constituting Consolidated Laws, chap. XIV. But, while it was without effect in so far as the appointment of a guardian is concerned, the person nominated as guardian has a power in trust over the property which the infant receives under the terms of the will with the same right as to its care, custody and control which a guardian would have during the minority of the infant. Matter of Kellogg, 187 N.Y. 355" court="NY" date_filed="1907-02-19" href="https://app.midpage.ai/document/in-re-the-accounting-of-kellogg-3584963?utm_source=webapp" opinion_id="3584963">187 N. Y. 355; Matter of Scoville, 72 Misc. 310" court="N.Y. Sur. Ct." date_filed="1911-05-15" href="https://app.midpage.ai/document/in-re-the-judicial-settlement-of-the-account-of-scoville-6146840?utm_source=webapp" opinion_id="6146840">72 Misc. Rep. 310; Matter of Poock, N. Y. L. J. June 2, 1915.

*648The only property of which the infant receives the present use and enjoyment is the interest on the sum of $8,000, which is to be used for her support during her minority. This interest a testamentary guardian, if legally appointed under the decedent’s will, would be entitled to receive and expend for her as indicated. Hence, the person in this will denominated guardian is entitled to receive it and must exercise the same measure of control and has the same right of disposition which he would have if his nomination as guardian could be given effect. The principal sum will remain in the hands of the executors until, under the terms of the will, payment thereof can be made. Matter of Wohlers, 98 Misc. 500" court="N.Y. Sur. Ct." date_filed="1917-01-15" href="https://app.midpage.ai/document/in-re-wohlers-6147593?utm_source=webapp" opinion_id="6147593">98 Misc. Rep. 500.

Decreed accordingly.