In re Wagner

The petitioner, as general guardian of George D. Wagner, an infant, presented to the Surrogate’s Court a petition asking that the sum of $550 be advanced out of the accumulations of income on a trust fund of $10,000, the income of which had accumulated for-the benefit of such infant. By the will of Bryan Lawrence, which was admitted to probate in the county of New York on the 18th day of May, 1896, his executors were directed to retain in trust and invest the sum of $10,000, “and to retain and accumulate the net income and interest thereof during the minority of- George Wagner, minor, son of my said granddaughter, Mary E. Wagner, and at the expiration of the minority of the said George Wagner to immediately pay over to him such accumulation. * * * If, however, the said George Wagner shall have died before arriving at the age of twenty-five years, leaving issue him surviving, then at his death to divide and pay over the said principal sum of $10,000, and any accumulation

The application was made under section 5 of the personal property law (chapter 417, Laws 1897). It is there provided:

“When a minor for whose benefit a valid accumulation of income of personal property has been directed shall be destitute of other sufficient means of support or education, * * * if such accumulation shall have been directed by a will, the Surrogate’s Court of the county in which such will shall have been admitted to probate may, on the application ¡of such minor or his guardian, cause a suitable sum to be taken from the moneys accumulated, or directed to be accumulated, to be applied to the support and education of such minor.”

The learned surrogate was of the opinion that, as the infant had but a contingent interest in the legacy in question and in the income and the accumulations thereof, as upon the death of the legatee before reaching majority both the principal of the legacy and the accumulations of income were, by the will of the decedent, given to other persons, the application should be denied; and the only question presented is whether section 5 of the personal property law applies where the will contains a direction that upon the death of the infant prior tó his arriving at the age of 21 years the accumulation of income then on hand should be paid to the person therein named. At the time the will was admitted to probate the provisions of section 5 of the personal property law were in force, that section being a substantial re-enactment of chapter 173 of the Laws of 1891. The will was, therefore, made subject to the provisions of this act. The object for which there can be a valid direction for the accumulation of income of personal property is stated in section 4 of the personal property' law. That section provides that such an accumulation of income is valid if directed to commence from the date of the instrument, or the death of the per

There is no reason to give a different interpretation to the words “for the benefit of the infant,” as contained in these two sections. The direction to accumulate the income upon this legacy during the minority of this infant, to be valid, must have been made for the benefit of the infant; and by section 5 of the act, where a minor for wrhose benefit a valid accumulation of income has been directed is destitute of other sufficient means of support or education, the court can direct that such a portion of the accumulation of income as is necessary shall be applied for that purpose. The Court of Appeals seems to have held in the case of Smith v. Parsons, 146 N. Y. 116 , 40 N. E. 736 , that the provision of a will which directs a payment of accumulations made for the benefit of an infant to others in case the infant should die prior to his arriving at the age of 21 is valid, and therefore must have held that such a direction in a will does not prevent the accumulation from being for the benefit of the infant, as it is only where an accumulation for the benefit of an infant is authorized that such an accumulation is valid. If, therefore, this accumulation of income is for the benefit of this infant, then the provisions of section 5 of the personal property law apply, and the court had power to make the application. The difference in the provision in relation to the anticipation of the accumulation of rents and profits of land and income of personal property is suggestive. By section 52 of the real property law (chapter 547, Laws 1896) it is when the rents and profits are directed to be accumulated for the benefit of a “minor entitled to the expectant estate” that the court is authorized to apply the accumulation to the support of the infant, but in relation to personal property the only restriction is that the income should be accumulated for the benefit of the infant. We think, therefore, that the accumulated income of this trust fund comes within the provisions of section 5 of the personal property law.

This conclusion is the same as that reached by this court in Matter of Lehman, 2 App. Div. 531 , 37 N. Y. Supp. 1086 , where it was held that such an allowance was proper, although the will contained a provision that upon the death of the infant before arriving at the age of 21 years the bequest should go to her issue, or, on the failure of issue, to the heirs of the testator. There is nothing in Smith v. Parsons, supra, that is in conflict with this construction of the statute. The question there presented was whether the accumulation of income vested absolutely in the infant, or became a part of the principal, and passed to the persons who were to be entitled to the property upon

Our conclusion is that the order appealed from should be reversed, and the application granted, with $10 costs of the application, and $10 costs and disbursements of this appeal, to be paid by the executors out of the accumulated income in their hands. All concur, except VAN BRUNT, P. J., who dissents.