Citation Numbers: 176 Misc. 189
Judges: Foley
Filed Date: 6/3/1938
Status: Precedential
Modified Date: 2/5/2022
A question of construction is presented in this accounting proceeding by reason of the fourth paragraph of the will which reads as follows:
The accountant has been acting as trustee of this fund and by reason of payments made there is a balance to the credit of the fund of $750.
The legatee is now dead and an administratrix has been appointed for his estate. She demands from the accountant that the balance be paid over to her, asserting that no valid trust was created by the fourth paragraph of the will. She contends that the bequest was a general legacy of $2,000 to be paid at the rate of $25 a month until the fund was exhausted. That construction of the will is correct. The legatee had a vested interest in the fund. No trust was created but payment only deferred. (Matter of Trumble, 199 N. Y. 454; Warner v. Durant, 76 id. 133.)
Submit decree on notice construing the will and settling the account accordingly.