Majority
p. 908In the Matter of the Application of Theodore A. Myers, as Adm’r, for an Additional Allowance.[1] In the Matter of the Petition of Louisa Myers for an Additional Allowance. (Court of Appeals, Filed March 22, 1892.)
Headnote
Executors and administrators—Costs.In this proceeding to compel payment of income of a trust fund to the • beneficiaries, it not being conceded that there was to be any accumulation of income, Held, that the direction of the surrogate that the costs be paid from the principal of the trust fund should not be disturbed.
Motion to amend remittitur.
Foster & Thomson and George M. Thomson, for motion; Benjamin Tuska, opposed.
This is a motion to amend the remittitur so as to direct that the costs be paid out of the principal of the trust estate and not from a portion of the income, and we think it should be granted.
The court received the impression upon the argument that it was conceded that the income of one-half of the trust fund, to which Matilda Myers was entitled in her lifetime, must accumulate until the death of her sister, and that the costs might properly be paid out of such income in accordance with the suggestion in the last opinion of Justice Daniels at general term. It seems that this was a misapprehension of the position of counsel, and that the question of the disposition of this income should not be embar
p. 909
rassed by any intimation or suggestion from the court upon the determination of this appeal. The remittitur should be amended . by striking out the modification of the surrogate’s decree in this respect and directing an affirmance of the decree, with costs of both parties in this court and the supreme court to be paid out of the principal of the estate in the hands of the executors.
All concur.