Kilburn v. See , 1 Dem. Sur. 353 ( 1883 )

The Surrogate.

I think Mr. Cromwell had a perfect right to appear, and that the proceeding would have been of little or no value without him as a party. .... We have nothing to do here with the interest on funds invested for the benefit of Wm. Witherspoon. He alone is entitled, under the will, to the interest, and if anything shall be due at his death, it will pass to his legal representatives. Mrs. Kilburn, as a presumptive heir-at-law of William, is, under the will, interested only in the principal of the fund. The duty of the administrators with the will annexed of Ann Witherspoon, deceased, is only to collect and receive the principal of the fund held by the deceased executor, with interest thereon since his death, and apply it as the will directs. ............

The executor was clothed by the will with a discretionary power to use so much of the principal of the fund for the comfortable support and maintenance of Wither-spoon as he might deem proper.....As the only object of this proceeding can be to ascertain and fix the condition and amount of the fund at this time, with a view to its transfer to the administrators with the will annexed, it results, from the views above expressed, that there is now remaining (deducting the $75 paid Mr. Yale) the sum of $3,314.62, subject, of course, to be diminished by the amount of commissions, the expenses of this accounting, and the amount of any liability there may be to the asylum where the unfortunate life-beneficiary now is, and as to which I am not advised. There can, of course, be no final accounting until his death.

Although the assets properly passed into the hands of the administrator of the deceased executor, yet he cannot execute the will of Ann Witherspoon, and as that will contains no valid legal trust to prevent it, the fund so remaining must be handed over to the administrators with the will annexed, whose duty it is, under 2 R. S., 72, § 22, to observe and perform the will.

A legacy, as is seen, was given by it to Wm. Wither-spoon, and it is the duty of an administrator with the will annexed to pay legacies. That is an executorial duty, and such administrator must discharge it. The interest of the fund is a legacy which the administrator must apply as directed by the will, but I do not think he has any discretionary power, such as the executor had, of encroaching upon the principal. The power to do that, I think, died with the executor on whom it was conferred (Beekman v. Bonsor, 23 N. Y., 298). Such seems to be the somewhat refined distinction made by the higher courts.

The trust contained in the will is a common-law trust, such as is unauthorized by our statutes of uses and trusts, and is unlike one voluntarily created or assumed by one person for the benefit of another, where both are living, and where the trust devolves on the administrator of the creator thereof, as was the case in Boone v. Citizen’s Savings Bank [84 N. Y., 83). Costs, to be taxed, are allowed out of the fund.

Decreed accordingly.