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In re the Estate of Foster

30 Misc. 573 Court N.Y. Sur. Ct. English

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p. 573
Matter of the Estate of John Foster, Deceased.
(Surrogate’s Court, New York County,
February, 1900.)

Headnote

1. Surrogate’s Court — Cannot instruct trustee how to perform his trust.
Semble, that a surrogate has no power to entertain an application seeking or requiring instructions or directions to be given to a trustee as to the manner of the execution of his trust.
8. Same — Application by beneficiary for payment of income to his assignee — Notice — Inalienability of income not accrued — Code Civ. Pro., § 8804.
Where a beneficiary applies, under section 2804 of the Code of Civil Procedure, to the Surrogate’s Court, in his own behalf, and in that of other beneficiaries,- for the payment of the income of a trust to their assignee, the court will not act in the matter until all the beneficiaries have been cited.
Semble, that only the petitioning beneficiary could obtain relief.
Semble, that no disposition of the income of a trust could be made by any of the beneficiaries until the income of the said beneficiary had actually accumulated.
Application for the payment of certain legacies under the will of said deceased.
Charles W. Lefler, for petitioner.
Delafield, Gould & Longfellow, for trustees.
H. S. Chatfield, for J. E. Foster

As there is no power in this court to entertain an application seeking or requiring instructions or directions to be given to a trustee as to the manner of the execution of his trust, I have treated this as an application made under section 2804 of the Code of Civil Procedure. That section only authorizes the surrogate to direct a payment out of income in the hqnds of the trustee or presently payable by him. The income in the hands of the trustee, as shown by the papers submitted, amounts to $4,081.05. This income cannot be paid to the beneficiaries, as I deem it wholly applicable to the reimbursement of the principal of the trust estate on account of the expenditures in excess of that amount made therefrom and which should be borne by the income. The balance of the proceeds of the sale of the leasehold mortgage, mentioned in the respondent’s answer, is part of the cor pits of the estate, and, of course, cannot be used for the benefit of the beneficiaries. The firm of Lark, Sons & Co., which appears herein, is the holder of an instrument purporting to assign, or which it might' be claimed assigns, to it the interest of two of the beneficiaries in the income of the trust fund. These beneficiaries are not before the court except by the appearance of an attorney who represents the assignee. His appearance for the beneficiaries is claimed to be' authorized by his selection by the assignee by virtue of a power contained in the instrument making the assignment. In view of the nature of that instrument I do not think that I would be justified in treating such selection and appearance as sufficient to dispense with the citation of the beneficiaries or the acquisition of jurisdiction over them in some other proper way. They, by the instrument referred to, attempted to transfer income to which they would become entitled under a trust created for their benefit, so that, even if they had been cited or were represented by an attorney unquestionably authorized to appear for them, no part of their income, if there were any to which they are now entitled, could be distributed to their assignee (Tolles v. Wood, 99 N. Y. 616 ; Cass v. Cass, 15 App. Div. 235 ; Matter of Edson, Surr. Decs. 1897, p. 671); and, under the circumstances, I should not feel at liberty to direct the payment of such income to the assignee under his claim to be entitled to it as the attorney in fact of the beneficiaries. This application is made by one of the beneficiaries, who, in the prayer of his petition, asks for the same relief in behalf of the other beneficiaries as he seeks for himself. The others, with the excep

p. 575
tion of the two above referred to, appeared or- were cited in this proceeding. While all the beneficiaries and their assignees are, no doubt, proper parties thereto (§ 2806, Code Civ. Pro.), it is very doubtful whether such relief as might be granted under section 2804 of the Code of Civil Procedure, which is the statute under which I have entertained the proceeding, is not exclusively confined to the petitioner.

Application denied.

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