Majority
—The petitioner, Julia A. Carr, appeals from an order of the superior court denying her application for an order requiring respondent trustee to make payments from the corpus of the trust estate.
By the will of Charles Henry Oliver, who died February 18, 1929, a trust was created and the trustees were directed to convert all of the property into cash and reinvest it in securities that would net at least six per cent. In its sixth paragraph the will provided: “The Trustees are to collect and receive the income of said Trust Fund and pay the same over as it occurs and is collected to the Beneficiaries for whom it is set apart during their natural life of such Beneficiary.” Subsequent paragraphs of the will provided: “Ninth—I give and bequeath to my friend Mrs. Julia A. Carr, residing at Pokeepsie, New York, the sum of Eighteen Hundred Dollars, per year during her life. The same to be paid in monthly installments if possible, at the rate of One Hundred and Fifty Dollars per month. Tenth—-The balance of the income of said Trust Fund I give and bequeath to my brother George W. Oliver residing at Wyandanch, Long Island, New York, the same to be paid as it occurs and is collected. Eleventh—The Trust Fund must be kept in tact during the life of my brother,
In affirming the order just mentioned this court said: “Mrs. Carr does not appeal, and her rights, if any, to an additional order are not before us for review. . . . Paragraph nine of the will creates an annuity in favor of Mrs. Carr. . . . The trustee cites no authority which holds that expenses of administration of a trust may not be paid from the corpus of a trust where the decree of distribution creates an annuity; and we know of none. We are not referring, of course, to cases where the will expressly provides that periodical payments shall be made from the income.” The opinion on the former appeal was before the court at the hearing of the present petition. The order of the trial court denying the petition contained the following: “In the opinion in that case the appellate court, by way of discussion, assumed that the provision in favor of Mrs. Carr was an annuity. But as that matter was not before the court the accuracy of the assumption was not given the test and consideration it no doubt would have been given had it been made an issue.’ ’ Whether the question concerning the nature of Mrs. Carr’s legacy was before the court on the former appeal need not now be decided since we are satisfied with the statement made in the former opinion that the will creates an annuity in favor of Mrs. Carr. As pointed out in the former opinion the bequest to Mrs. Carr is positive and certain and without condition. No provision is contained in the will whereby payments are limited to income. Section 104 of the Probate Code is in point: “A clear and distinct devise or bequest cannot be affected by any reasons assigned
Respondent contends that the order made by the trial court upon the filing of the trustee’s third annual account has finally disposed of the claim of Mrs. Carr to have the amount of her annuity paid from the corpus of the estate. According to the statements in the briefs a wide disagreement exists between the respective counsel as to what order was actually made. The transcript does not contain a copy of the order. There is nothing before us upon which a decision on this point can be made.
The order is reversed.
Crail, P. J., and MeComb, J., concurred.
A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 19, 1937.