
    Matter of the Judicial Settlement of the Estate of Henry Oltmans, Deceased.
    (Surrogate’s Court, Kings County,
    February, 1907.)
    Wills — Interpretation and construction — General rules — Previous acts and understanding of parties.
    Former adjudication — What matters are concluded — In general — Matters actually determined.
    In a case where, by reason of the inartistic manner in which a. will was drawn, it is impossible to say definitely whether it was the testator’s intention to create a trust or to provide for the immediate payment of certain funds to the beneficiaries but where, upon the settlement of the executors’ accounts, it was assumed that a trust was created and the decree was framed accordingly, this will be regarded as an election of the parties to construe the will as creating a trust; and the surrogate will follow such construction upon the death of one of the assumed' trustees and entertain an application for the appointment of a substituted trustee in his place and a trustee in the place of the remaining trustee who desires to resign his trust.
    Proceedings upon the judicial settlement of the accounts of executors.
    Daisy Gaus, for petitioner, Ann Margaret Gaus.
    Henry P. Burr, for George O. Zollinhofer.
    GocIIer, Shaffer & Eisler, for Sophie Zollinhofer.
   Church, S.

There appears to have been a curious jumble of ideas concerning this estate, as the result of which several matters have been wrongly entitled and improper relief has been asked. Briefly stated, the situation is this:

The deceased left a will in which, after making several bequests, he made provision for his wife and certain children during their lives. The will was very inartistically drawn, and it is impossible to say definitely whether it was the intention of the testator to have these funds held in trust by trustees or whether the persons given life estates were to take the property directly and to enjoy its use for the period named in the will.

At the time of the settlement of the accounts of the executors, the parties seem to have mutually elected to treat the entire property ás a trust estate to be held by the executors as trustees. It is apparent, however, that this course was not made the subject of any discussion or determination by the surrogate. Although the estate was thus technically held in trust and, hence, by the executors as trustees, yet, in the subsequent accounting and in this accounting, the trustees are referred to as executors.

The present proceeding is the outcome of the death of Charles H. Gaus, who was one of the executors named in the will and who had acted in that capacity. This is a judicial settlement of his accounts as executor by Margaret Gaus, the executrix of his last will and testament. The other executor—or trustee, as he properly should be called — Zollinhofer, has been cited upon this accounting, but he does not appear or account. When the accounts of the said executrix were passed upon, a decree was submitted providing for the appointment of an administrator with the will annexed; but, inasmuch as there were no duties to be performed by the executors as such, it was manifestly improper for an administrator with the will annexed to be appointed.

The sole question of law arising was whether the estate should be distributed among the persons having life estates therein or whether the will should be construed to create a trust, in which case it would be necessary to appoint a substituted trustee in the place of the deceased. This quescion, however, was not pnt in issue by the parties; but, subsequently, a decree was submitted, apparently agreed to, providing for the direct payment to the various life tenants of their proportion of the estate, upon a suitable bond being given by them under the provisions of the statute. The attention of the parties was drawn-to this inconsistency with their previous decree and a request was made for evidence as to the amount for which a bond would be required. A construction of the will of the deceased is now asked by the parties, the contention on the one hand being that the entire estate should be held in trust, and on the other that it should be distributed among the beneficiaries.

As has been heretofore stated, the will is very inartistieally drawn. There is no direct trust created nor are any persons named as trustees, and there is no evidence in the instrument from which the intention of the testator to create a trust can be gathered.

If this were an original question, it is doubtful whether an implied trust could be spelled out from the four corners of the will; but as, by the previous decree herein, the parties have elected to regard a trust as having been created and the surrogate has so ordered, the best interests of all concerned will be most effectively protected by continuing the estate funds in the hands of trustees.

Proceedings should, therefore, be instituted for the appointment, of a substituted trustee in the place of the deceased trustee and for the appointment of another trustee in the place of the executor, Zollinhofer, who, I am informed, is desirous of resigning his trust.

When this is done, a suitable decree can be entered transferring the estate to the hands of such substituted trustees.

Decreed accordingly.  