
    Daniel S. Jones, Resp’t, v. Edward J. Newell, as Administrator, etc., et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1894.)
    
    'Trusts—Abolition.
    A provision, in a trust, that the trustee-may apply as much of the trust fund to his personal use as he may find necessary, does not abolish the trust.
    Appeal from a judgment dismissing the claim against the estate.
    
      John M. Zurn, for app’lts; Olcott & Olcotl (W. M. K. Olcoit, of counsel), for resp’t.
   Pratt, J.

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 suggestion 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 abased, 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.  