In re Gross — 52 N.Y.2d 1006

Majority

p. 1006

In the Matter of Emily Gross, as Trustee under the Last Will of Martin Escher, Deceased. New York State Department of Mental Hygiene et al., Appellants; Benedict Ginsberg, as Guardian ad Litem, et al., Respondents.

Argued January 12, 1981;

decided February 19, 1981

p. 1007

APPEARANCES OF COUNSEL

Robert Abrams, Attorney-General (Marie A. Beary,

p. 1008

Shirley Adelson Siegel and Thomas P. Dorsey of counsel), for appellants.

John B. Fitzpatrick for Barbara E. Glass, respondent.

Benedict Ginsberg, pro se, and Philip A. Mittleman for Benedict Ginsberg, guardian ad litem, respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

It cannot be said that the trustee was required to invade the corpus of the trust to reimburse the Department of Mental Hygiene for costs incurred in caring for the life beneficiary. Both courts below found that testator’s intent, as expressed in the codicil establishing the trust in its current form, was that the corpus be invaded only for health-related emergencies and that routine expenses for care be paid out of the income. This was amply supported by the record. The trustee did not abuse her discretion as a matter of law.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.