
    Matter of the Judicial Settlement of the Account of Calvin F. Barber, as Executor of the Last Will and Testament of Thomas N. Dwyer, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      Filed December, 1901.)
    Judicial Settlement — Teust in Personalty — Merger in Remainder Under L. 1897, Ch. 417, § 3.
    A beneficiary of tbe income of a testamentary trust in personalty, enduring for his life or a shorter term in the discretion of the trustee, and entitled to the undisposed remainder as the only next of kin of the testator, has an absolute right under L. 1897, ch. 417, § 3, to determine the trust, and obtain possession of the corpus, by releasing his interest in the income, and the court has no discretion in the matter.
    Proceedings upon tbe judicial settlement of tbe accounts of an executor.
    James and Tbomas H. Troy, for executor; William D. Yeeder, for objector.
   Abbott, S.

— Tbe estate vested in tbe trustee is limited to tbe period of tbe life of Erank J. Dwyer, and in tbe discretion of tbe trustee may be sooner terminated. Tbe remainder is un-disposed of by tbe will and vested at once in tbe testator’s only next of kin, Erank J. Dwyer.

Thus tbe conditions prescribed by section 3 of tbe Personal Property Law (Laws of 1897, ebap. 417) are all fulfilled. We have a beneficiary of a trust for tbe receipt of tbe income of personal property, wbo is entitled to a remainder in tbe principal fund, subject to bis beneficial estate for life or a shorter term. Tbe statute provides that under these circumstances the beneficiary may release bis interest in the income, and thereupon tbe estate of tbe trustee shall cease, and tbe trust estate merges in tbe remainder. .

Tbe release prescribed by tbe statute bas been executed and tbe trust estate bas merged in tbe remainder.

I fully appreciate tbe force of tbe argument of tbe learned counsel for tbe trustee as to tbe extreme undesirability of fuming over tbe principal fund to tbe beneficiary. I bave no discretion in tbe matter, however. Tbe beneficiary bas executed a proper release in consequence of wbicb tbe trust estate bas already merged in tbe remainder.

Decree may be presented in accordance herewith on two days' notice.

Decreed accordingly.  