
    John W. Cochrane, as Sole Trustee, Etc., of James Joseph Alexandre, Deceased, Etc., Plaintiff, v. Leonie Alexandre, Impleaded with Natalie Banner et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1907.)
    Accumulation — Limit of accumulation; Effect of invalidity.
    Former adjudication—What matters are concluded — Matters not necessarily involved in former proceeding.
    Where a will provides for the payment of the income of a share of the testator’s estate by the trustee to the guardian of the beneficiary during infancy, less the sum of $5,000 annually while under the age of fifteen years and less the sum of $10,000 annually afterward until his majority, after which the trustees are directed to pay him $15,000 annually until he reaches the age of twenty-five years and then to pay him the principal sum less , so much as is required to produce an annual income of $10,000, the sum so deducted to be held‘in trust for the beneficiary’s life with certain remainders over, the directions for accumulation of income during minority are invalid so far as the accumulation is sought to he made part of the fund to be held in trust after the period of nonage has expired and the beneficiary upon attaining his majority is entitled to such accumulation and thereafter to the entire income without deduction.
    Decrees settling the trustees’ accounts from time to time during the minority of the beneficiary, in the proceedings for which the beneficiary was represented by his guardian, do not estop him from asserting the invalidity of the provisions for accumulation as the ultimate disposition of the accumulated income was not involved therein.
    Action for construction of will.
    Ernest P. Hoes, for plaintiff.
    Eugene D. Alexander, for defendant Jerome Alexandre.
    
      Augustus If. Hand, guardian ad litem for defendant ¡Natalie Alexandre.
    ¡Robert Thorne, guardian ad litem for Leonie Alexandre.
    J. Albert Lane, guardian ad litem for defendant Helen L. Alexandre et al.
    
   Bischoff, J.

The question before me concerns the disposal of certain income accruing from a trust fund created for the benefit of the .defendant Jerome Alexandre by the will of James Joseph Alexandre, deceased.

The will provided for the payment of the income by the trustees to the guardian of the beneficiary during infancy, less the sum of $5,000 annually while he should be under the age of fifteen years, and less the sum of $10,000 annually during the succeeding period until his majority. Upon the beneficiary’s attaining the age of twenty-one years, the trustees were directed to pay him the sum of $15,000 per annum until he should reach the age of twenty-five years, then to pay over to him the principal sum, less so much as would be required to produce an annual income of $10,000; this sum so deducted to be held upon trust, for the beneficiary’s life with certain remainders over.

All accumulations of income within these provisions were directed to be added to the principal of the trust fund.

The defendant Jerome Alexandre having attained the age of twenty-one years, and having asserted the right to the possession of all accrued income as well as to the enjoyment of the full annual income now accruing from the trust fund, the plaintiff has brought this action for a construction of the will to the end" that his duties may be defined.

There can be no doubt that the direction for the accumulation of income during minority was invalid, so far as the accumulated money was sought to be made a .part of the fund to be held upon trust after the period of nonage had expired.

Accumulations of income may be directed for one purpose only, and within a single period, for the benefit of an infant and during minority (2 R. S., chap. 1, tit. 2, §§ 37, 38; id., chap. 4, tit. 4, §§ 3, 4; Real Prop. Law, § 51; Pers. Prop. Law, § 4) ; and, as judicially interpreted, the statute prohibits further-disposal of the accumulated fund upon any trust with the result that the beneficiary upon attaining his majority is entitled to the accumulations which have actually been made. Pray v. Hegeman, 92 N.Y. 508; Hascall v. King, 162 id. 134; Barbour v. De Forest, 95 id. 13. So, too, within the same rule, the directions in the will before me for the accumulation of income after majority and during a future period are clearly invalid, and the beneficiary — presumptively entitled, as he is, to the “next eventual estate ” upon his attaining the age of twenty-five years — becomes, by virtue of the statute, entitled to the income thus undisposed of by valid direction. Real Prop. Law, § 53; United States Trust Co. v. Soher, 178 N. Y. 442, 450. But, while conceding the invalidity of these directions for an accumulation, as an original question, the parties whose interests are favored by the carrying out of the directions contend that •the defendant Jerome Alexandre is estopped by adjudication from asserting that invalidity. It appears that during this defendant’s minority successive accounting proceedings .were instituted in the Surrogate’s Court, to which proceedings he was a party represented bv special guardian, and that decrees were entered settling the accounts of the trustees, whose acts, in purported compliance with the will, were thus approved. Were the validity of the provisions for the accumulation involved in the very matter brought before the surrogate for decision, the decrees which expressed the ultimate result would be deemed to have concluded the question, notwithstanding that the point was not actually litigated (Thorn v. De Breteuil, 179 N. Y. 64); but,' as I view the case, no such situation arose here. In none of these earlier proceedings was the question of the ultimate distribution or application of the accumulated income involved. The accounts show the fact that there had been an accumulation, but an actual inclusion of this fund with the principal trust fund was not suggested nor was its propriety a matter for incidental decision. To the extent that the will directed the accumulation during infancy, the accounts show that the trustees had observed it, by adopting a schedule to set forth the items of accumulations styled “ special trust fund.” So far, as to the validity of the will, the surrogate may be deemed to have registered a decision, but no further, since the accounts and the decrees settling them related wholly to the past and nothing was asked or required in the way of a determination of the disposal of the special trust fund.” Needless to say no such determination could be appropriately made in the accounting proceedings, while the beneficiary was still a minor; for the contingency' of his death during infancy left the situation an open one as to which no decision upon a speculative state of facts could aid the trustees in their then duties nor affect the passing of the accounts. The surrogate’s power to construe wills not being general in character but confined by the statute to the necessities of the case before him and as incidental to his determination (Code Civ. Pro., §§ 2472-2481, subd. 11; Washborn v. Cope, 144 N. Y. 287-295), the adjudication expressed by these decrees certainly did not extend to the status of the accumulated income at the time when the beneficiary should reach his majority. The case of Kirk v. McCann, 117 App. Div. 56, is . directly in point and is conclusive as an authority that there was no estoppel by adjudication on the facts before me. Again and for still another reason there was no adjudication upon the provisions of the will which related to the accumulations of income during the period between the beneficiary’s twenty-first and twenty-fifth years. Here, there was to be an accumulation only in the event that the income exceeded $15,000 per annum ;■ and the necessary uncertainty as to this rendered the question quite immaterial, in any aspect, to the passing of the accounts.

I conclude that upon the attainment of his majority the defendant Jerome Alexandre became entitled to the income accumulated during his infancy, and that he is also entitled to the full income from the trust fund as it. accrues pending the payment over of the principal and the retention of the smaller trust fund by the trustees upon his reaching the age of twenty-five years.

The defendant Leonie Alexandre, an infant, the beneficiary of a trust upon identical terms, prays for a similar construction of this will as to her interests, depending upon her reaching the age of twenty-one years.

All parties being before the court and a general construction being sought, the decree may properly cover thiS phase of the controversy; and it may be framed accordingly, with provision for costs to all parties payable out of the corpus of the two trust funds.

Form of decree may be presented on notice of settlement.

Judgment accordingly.  