Powers v. Powers — 16 N.Y. St. Rep. 770

Majority

p. 770

Henry H. Powers v. Ellis K. Powers, Executor, Etc.

(Supreme Court, General Term, First Department,

Filed June 19, 1888.)

Headnote

Will—Construction of—Trust.

The testator in the fifth clause of his will gave to his executor and trus tee the sum of $50,000. “Intrust, however, to invest and re-invest the same from time to time as may be necessary *n first bonds and mortgages.

p. 771

or U. S. government securities, and to pay over the income thereof to my cousin, Henry H. Powers, during the term of his natural life,” etc. Held, that the income was disposed 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 Henry H. Powers from that time.

Case agreed upon and submitted to the court for its decision. pursuant to section 1279 of the Code of Civil Procedure.

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 re-invest the game 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 H. 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 disposed 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 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 the 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.