In re the Estate of Breidner , 113 N.Y.S.2d 398 ( 1952 )

Potts, S.

This is an application by two infants for an order permitting the withdrawal of $1,500 from the accumulated income of each of two testamentary trusts of personal property for their benefit for the purpose of defraying tuition costs and expenses incidental to their acquiring advanced education. The will provides for an alternative disposition of the accumulated income in the event the primary beneficiary dies before attaining majority.

The present trustee is the mother of the infants. She appears in the proceeding and consents to the granting of the application. The joint affidavit of herself and the infants’ stepfather supports the allegations of the petition as to lack of other sufficient means to pay for the infants’ education. While the statutory authority for the relief requested is not disclosed by the petition or supporting papers, the court considers the application as made pursuant to section 17 of the Personal Property Law.

Although the contingent income beneficiaries are not parties, their interests are represented herein by the trustee whose action, in the absence of fraud or collusion, is binding upon them. They are not necessary parties (Matter of Haag, 100 Misc. 249).

The will provisions providing for a gift over of the accumulated income upon the death of the infant before attaining his or her majority, as the case may be, although lawful (Smith v. Parsons, 146 N. Y. 116), do not deprive the infant of the benefit accorded by section 17 of the Personal Property Law (Matter of Wagner, 81 App. Div. 163; Matter of Reilly, 170 Misc. 932).

The application is granted and the trustee is directed to take the sum of $1,500 from the accumulated income of each of the trusts and apply the same for the education of the respective infants and expenses incidental thereto.

Order signed.