Suesens v. Daiker — 117 A.D. 668

Majority

p. 668

Herman Suesens and Elizabeth Heimsoth, as Trustees under the Last Will and Testament of Frederick Heimsoth, Deceased, and as Executors and Trustees under the Will of Matilda S. Daiker, Deceased, Respondents, v. Herman G. Daiker, Appellant, Impleaded with George F. Daiker, Jr., and Others, Defendants.

First Department,

February 25, 1907.

Headnote

Parent and child —will providing for support óf minor—income applied when father unable to support infant.

When a will creates a trust, for the maintenance and support of an infant during. . his minority, accumulations and principal to he paid over on his arriving at majority, the trustees may be ordered to apply such portion of. the income as is necessary to the support and maintenance of the infant; if the father has not sufficient financial ability to properly care for him.

p. 669

Appeal by the defendant, Herman Gr. Daiker, from an order of -the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York'on the 10th day of December, 1906, denying the said defendant’s motion that the plaintiffs, as trustees and executors, be directed to pay certain moneys for the maintenance of said defendant.

Simeon Sultan, for .the.appellant.

Gyrus G. Miller, for the respondents.

Appellant is an infant whose mother died leaving a last will' and testament of which respondents are executors and trustees, which provided that the residue of her estate should be invested and the "income applied to the maintenance and support of appellant during his minority, and on his arriving at the age of twenty-one-years any accumulations from the income and the principal to be paid over to him or his issue.

The moving papers disclose that the appellant is only three years of age and in such ill and unfortunate condition that he requires more than ordinary care. The motion was for an order directing the executors and trustees -to apply the income, which amounts to about $1,500 per annum, and what has accumulated in the hands of the trustees, to the payment of past expenses incurred in the care of appellant, and for the fixing of a sum to be regularly paid in the future for his support and maintenance. The motion was denied on the ground that the papers did not disclose the financial inability of the father to adequately support his child.

The language of the will of the mother shows her intention that her child or children should be supported from the income of her residuary estate if there was a necessity to resort to such a source. If the earning capacity and financial ability of the father is inadequate to properly care for appellant, such part of the income as is necessary should be applied to that purpose.

On another motion the facts and circumstances can be fully developed, and to that end we think the order should be modified by permitting a renewal of the motion upon additional papers.

We express no opinion with respect to the propriety of paying

p. 670

past expenditures. . That, matter can he determined when it more fully appears how they were incurred, and for what .and by whom. paid. •

The order should be modified by giving the appellant leave to renew on additional' papers, and as ’so modified affirmed, without costs.

Patterson, 'P. J., Ingraham, Láhghlin and Lambert, J.J., cbncurred.

Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.