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Powers v. Powers

1 N.Y.S. 636 Court N.Y. Gen. Term Decision date 1888-06-19 English

Delivered by Daniels, J.

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p. 636
Powers v. Powers.
(Supreme Court, General Term, First Department.
June 19, 1888.)

Headnote

Wills—Construction—When Legacy is Payable.
A beneficiary under a will bequeathing a fund to a trustee in trust to invest the same, and pay over the ineotne, is entitled to such income from the time of testator’s death, where the trust fund had been invested by testator, and had yielded income from such time.
Case submitted on agreed statement of facts.
Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

The question submitted to this court for its decision is whether the plaintiff is entitled to interest, under the trust created in his favor by the fifth clause of the will of the testator, from the time of his decease. In this clause, he gave to his executor and trustee the sum of $50,000, “in trust, however, to invest and reinvest the same from time to time, as may be necessary, in first bonds and mortgages, or United States government securities, and to pay over the income thereof to my cousin Henry PI. Powers during the term of his natural life.” The residue of this clause in the will is not important to be considered by the court. The plaintiff claims the interest or income of this sum of money from the time of the death of the testator. It was dispos.ed of in no other manner than by giving it to him directly; and as the amount was invested by the testator himself, and yielding this interest or income from the time-of his decease,- the right to it necessarily vested in and became the property of the plaintiff. This subject was considered in Cooke v. Meeker, 36 N. Y. 15 , where that construction was placed upon a similar direction contained in a will; and no authority has been found, neither is there any probability that any can be, in any manner modifying or changing this

p. 637
rule. It has been agreed by the case, if this construction is to be placed upon this clause of the will, that the plaintiff is entitled to recover judgment for tlie sum of $2,107.87. He is so entitled, and consequently judgment should be directed in his favor for the recovery of that amount.

Van Brunt, P. J., and Brady, J., concur.

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