109 N.Y.S. 217 | N.Y. App. Div. | 1908
This is an appeal from a part of a decree of one of the surrogates settling, the accounts of the executrix and executor of the will of Mary J. Martin, deceased. The appellant seeks to review so much of the decree as gives double commissions to the executors, and als,o objects to the amount allowed-for receiving and paying out income, and to an additional allowance under section 2562 of the Code of Civil Procedure.
Mary J. Martin died on July 26,1896. By her will she appointed the respondents her “ executors and trustees.” After providing for the payment of her debts and funeral expenses she gave, devised and bequeathed “ all my property, real, personal and mixed unto my said executors and trustees upon the following trusts.” Then' followed three subdivisions. In the' 1st subdivision she expressed the wish that her unmarried daughters and her son should live krone household, arid to that end directed her executors and trustees to keep up the home that she was living in at'her death, paying taxes, assessments, insurance and repairs during the lives of the two youngest daughters who might survive her, or during such less time as any of her unmarried daughters choose to live there, and she provided for setting apart a fund, the income from which was to be used, to keep up the house. _ It was also provided alternatively that if her unmarried daughters should choose to live elsewhere, the house should fall into the residuary estate, and a fund of $50,000 was provided to acquire and keep up another house for the use of said unmarried daughters. The 2d subdivision provided as follows: “I direct my said executors and trustees as soon as practicable'after the date of my death to set apart out of my estate a share thereof for the benefit of my son John C. Martin, which said share shall be the proportionate part which lie would receive of my estate in -view of the number of my children who may survive me, and of my children ■who may "have died before me leaving lawful issue me surviving.” This share is to be held in trust for the benefit of John C. Martin during his lifetime, and at his death to be divided among his unmarried sisters. The 3d subdivision runs as follows: “ As to all the rest, residue and remainder of my estate real, personal and mixed I direct my said executors and trustees to keep the same safely invested during the lives of the two youngest of my daughters, who
The second objection to the decree. relates to the allowance to
Patterson, P. L, McLai|ohlin, Laughlin. and Houghton, JJ., ■ concurred. • . . • . ..
, Decree modified as directed in opinion, with costs to appellant payable out Of the estáte; Settle order on notice. ■