In re Hurry

Giegerich, J.

As I construe the will of the decedent the entire trust fund should be treated as a single fund and not made up of parts, and that all taxes on and carrying charges of the Sixth avenue property are to- be paid out of the gross income of the trust fund from whatever source derived, whether realty or personalty, and are not properly chargeable against the corpus of the trust fund. This is not a case of unimproved real estate which has been increasing in value, but, on the contrary, it has a valuable building standing upon it and produced a large rental until the disastrous change of the character of the neighborhood. But this change has brought a great loss not only to the rental value, but also to the fee value, which has fallen from $350,000 to $100,000. There is nothing in the will warranting the conclusion that the testator intended that the remaindermen, after suffering such a loss in the fee value, should also stand the loss in the rental value and make up to income out of principal such loss of rental value. For the reasons stated the corpus of the trust fund is not chargeable with the expenses of the care and maintenance of said property since the month of February, 1915, for watchmen’s wages, taxes, insurance and other expenses amounting to $11,030.82, which since has been paid from the income of the other part of the residue of the estate, or with the sum of $900 for broker’s commissions on procuring a lease of said premises, or with the taxes for the second half of 1917, amounting to $1,515, or with the insurance and other expenses of the said premises. All these various items should, in my view, be paid out of the gross income of the trust fund. I am of the opinion, however, that the sum of $15,000, which under the terms of the lease the trustees will be compelled to expend in making necessary alterations to the building erected on said property, should be paid out of the corpus of the trust fund, such alterations being apparently of permanent value to the property. Motion disposed of as indicated.

Ordered accordingly.