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Jones v. Leonard

28 N.Y.S. 906 Court N.Y. Gen. Term Decision date 1894-05-14 English

Delivered by PRATT, J.

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p. 906
JONES v. LEONARD et al.
(Supreme Court, General Term, Second Department.
May 14, 1894.)

Headnote

Trusts—Validity—Authorizing Trustee to Use Fund.
A provision, in a bequest in trust, that the trustee may apply such portion of the trust fund to his personal use as he may And necessary, does not abolish the trust.
Appeal'from special term, Kings county.
Action by Daniel S. Jones against Edward J. Newell, as administrator with the will annexed of Bridget Callahan, deceased, and Annie Leonard, as administratrix of Patrick D. Callahan, deceased, and others, to compel payment of a judgment held by plaintiff out • of the property left by Bridget Callahan, deceased. 'From a judgment which determined that defendants Annie Leonard and others were not entitled to any interest in the estate left by Bridget Callahan, deceased, and dismissing their claim against the estate, they appeal. Affirmed.
Argued before BBOWN, P. J., and DYKMAN and PRATT, JJ.
John M. Zurn, for appellants.
Olcott & Olcott (W. M. K. Olcott, of counsel), for respondent.

The appellants contend, upon the authority of Floyd v. Fitcher, 38 Barb. 409 , and other cases, that the bequest of personal property to Callahan, with a limitation over to his daughter, vested in him the whole estate, and that the limitation over was void for repugnancy. However this may have been had the bequest been to him primarily for his own benefit, and without the sugges

p. 907
tion of a trust, it is not necessary to determine, for the bequest is made to Callahan, “in trust, however, and for the benefit” of the daughter. Appellant’s counsel argue with great ingenuity that the permission given the trustee to apply such portion of the trust fund to his personal use as he might find necessary, without accountability, was equivalent to an abolition of the trust. We do not think this can be held. The testator cannot be supposed to have contemplated that the confidence would be abused, and, if not abused, the trust was not endangered, as the result well illustrates. On the whole case we are of opinion that the judgment must be affirmed, but without costs.

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