In re the Accounting of Curtis

Headnote

Matter of Curtis, 185 App. Div. 948 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 12, 1918, which unanimously affirmed a decree of the Chautauqua County Surrogate’s Court construing a clause of the will of Fred M- Curtis, deceased, which follows: “ I hereby giye,

devise and bequeath unto my beloved wife, Clara Helen Curtis, the use and benefit of Fifty Thousand Dollars, that is, the first Fifty Thousand Dollars derived out of and from my estate. I hereby direct that said Fifty Thousand Dollars shall be invested in bonds, and mortgages or bonds or mortgages chosen by Cheston A. Price and Frank G. Curtis and the income from such bonds and mortgages or bonds or mortgages shall be turned over to and be given to my said wife as her property absolutely.”

The following questions were involved.

“1. Under the will of the testator, and in the light of the facts disclosed by the record upon this appeal, is Clara Price Curtis, the widow of testator, entitled to have the income upon the trust fund created by the will for her benefit computed and paid to her from the date of the death of the testator?

“ 2. If not, should such computation and payment be from a year from such death?

“ 3. If not, should such computation and payment be from the time of the execution of the contract for the sale of the corporate stock of the F. M. Curtis Co.?

“4. If not, should such computation and payment be from the time of the actual investment in bonds and mortgages, pursuant to the direction of the will, and include only income earned upon such investments when actually so made? ”

The surrogate held that the widow was entitled only to income arising from mortgage loans set aside or specifically made for her benefit.