In re the Judicial Settlement of the Account of Bavier , 13 Mills Surr. 410 ( 1914 )

Dowling, J.:

By the 4th, 5th and 6th clauses of his will Robert Burns directed as follows:

“ Fourth. The other two-thirds of the said net rents, issues and profits of said net real estate, I give to my said wife and the said william n. bavier and the survivor of them and their successors, in trust, to apply the same or so much thereof as my said wife during her life (or the surviving Trustees and their successors after her death) may think necessary or proper, for the care, education, maintenance and support of my daughter Mary Burns, and such issue as she may have during the life of my said daughter. If my said daughter should die before the death of my said wife, leaving issue her surviving, then on the further trust during the life of said wife, to pay the said two-thirds of the net rents, issues and profits aforesaid and any and all surplus thereof unexpended, if any, to the issue of my said daughter and their descendants, share and share alike per stirpes and not per capita. If my said daughter should die (leaving no issue her surviving) before the death of my said wife, then I give and devise all the surplus or balance of the said two-thirds of the net income of my said real estate unexpended, if any, to my wife, and in that event, I also give the whole of the said net income of my said real estate to my wife for and during the remainder of her natural life.

“Fifth. If my said daughter should die leaving issue her surviving who shall survive my wife, then after the death of my said wife, I give and devise all my said real estate unto such of the issue of my daughter and in such proportions as my said daughter may by her last Will and Testament appoint; and in default of such appointment, then to such issue and their heirs, share and share alike, per stirpes and not per capita.

“Sixth. After the death of my said wife, and after the death of my said daughter, and in the event of the death of my said daughter leaving no issue surviving my wife, I give and devise the whole of my said real estate and all surplus of the net rents, issues and profits remaining’ unexpended, if any, unto my nephew William N. Bavier, his heirs and assigns in fee. In case of the death of my said nephew before the death of my said wife and daughter, and in the event of the death of my said daughter leaving no issue surviving my wife, I give and bequeath all my said real estate and- any surplus of the net rents, issues and profits thereof, to such persons as my said nephew may by Last Will and Testament appoint, and in default of such appointment then to his heirs at law, share and share alike, per stirpes and not per capita.

“ If, under the provisions of this Will, there shall remain in the hands of the Trustees accumulations of the net rents, issues and profits not authorized by the laws of the State of New York, it is my will and I direct that such accumulations shall be regarded as real property, and be distributed according to the statutes of the State of New York relating to descent. ”

Upon the accounting the surrogate found that there was a balance of income in the hands of the trustees amounting to $56,325.40. He had previously appointed on his own motion a special guardian for Mary Bums, “ who although not judicially declared to be incompetent is a person not able to understand the nature and- character of the proceedings herein.” He further adjudged that there was “incorporated in the provisions of the last will and testament of Robert Burns, deceased, a direction for the accumulation of income which under the laws of the State of New York is unlawful; ” and as the will provided that any unlawful accumulations should go to his heirs, he found the surplus to belong to Mary Burns, and ordered an inquiry within one hundred and twenty days as to her competency.

There is no express provision in this will for any accumulation of income, and the direction for the distribution of such is only precautionary and made in view of the discretionary power vested in the trustees by the 4th clause of the will. The conclusions reached by Mr. Justice Clarke in Matter of Bavier, No. 1 (164 App. Div. 358) are found upon considerations equally applicable to the case at bar and require a like disposition of the present appeal, by reversing so much of the decree as has been appealed from, and adding a clause thereto providing that the trustees shall hold the amount of surplus income in their hands subject to the provisions of the will affecting the income of the estate, with costs to the trustees and guardian ad litem payable out of the estate.

Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred.

Decree, so far as appealed from, reversed and clause inserted as directed in opinion, with costs to the trustees and guardian payable out of the estate. Order to be settled on notice.