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In re the Judicial Settlement of the Accounts of Trelease

115 A.D. 654 Court Second Department, Decision date 1906-11-16 English

Delivered by Gaynor, J.:

Contents

Majority

p. 654
In the Matter of the Judicial Settlement of the Accounts of Walter K. Trelease and Mary A. Trelease, as Executors etc., of Francis A. Trelease, Deceased. Walter K. Trelease, as Executor, etc., of Francis A. Trelease, Deceased, and Walter K. Trelease and Samuel R. Trelease, as Residuary Legatees, Appellants; Mary A. Trelease, as Executrix, etc., of Francis A. Trelease, Deceased, Respondent.
Second Department,
November 16, 1906.

Headnote

Executors and administrators—bequest of income with, right to usé principal if needed— residuary legatees cannot contest application of principal.
An-executrix who is given the income from personal property for life with “the right, to usé the principal1 if She may need it,” may apply the principal to her own use, and her .accounting showing such application is not open to attack by residuary legatees. . "
A coexecutor of such" executrix has no right to an order giving him joint custody . " of the fund. -
Appeal, by Walter K. Trelease, as. executor, etc., and Walter K. Trelease and another, as residuary legatees, from a decree of the Surrogate’s Court of the county of Kings, entered in said. Surrogate’s ,,Court on the 9tii day of February, 1906, settling the accounts of Mary A. Trelease, as executrix, and also from an intermediate order, entered in said Surrogate’s Court on the 9th day of February, 1906S, denying the application of Walter. K. Trelease for joint custody of the funds of the estate.
Robert M. Boyd, Jr., for the' appellants.
Frederick M. Harris, for the respondent. 1

' It is. not easy to see what grievance the appellants assert or why they, appeal. They are the residuary legatees of the testator, and one of them is coexecuto.r of the testator’s will. By his will the testator left an. amount of personalty to his wife, this executrix, to have the income for. her life, and with “ the right to use the principal if she may need it.” In administering the. estate she has paid

p. 655
over to herself $1,600 under this bequest, and in her account'credits herself as executrix therewith, the words being, “ I have paid to myself as legatee of said deceased under and by virtue of said will the sum of,” etc.

This is correct. She has a right under the will to receive the personalty bequeathed to her as aforesaid, and invest it and use the income,- and also to use the principal if she needs it. On her death the residuary legatees will be entitled to aiiy of it that remains. Meanwhile she is their trustee of the fund (Rose v. Hatch, 125 N. Y. 427 ; Leggett v. Stevens, 185 id. 70).

There is also an appeal from an order of the surrogate, denying a motion of the coexecutor that he have joint custody of the fund with the executrix. She is given full posséssion and control by the will in the way above stated and is entitled to it.

The decree and order should be affirmed, with costs.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Decree and order of the Surrogate's Court of Kings county affirmed, with costs.

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