
    
      In re Byrnes’ Estate.
    
      (Surrogate’s Court, New York County.
    
    March, 1891.)
    Testamentary Trusts—How Enforced.
    Where the executors of a will are created testamentary trustees to apply the rents and profits of land to specified legatees during the latter’s life-time, an application by the legatees to compel a payment on account of such rents and profits must be brought under Code Civil Proc. N. Y. §§ 2804,2805, which provide amethodby which testamentary trustees may be compelled to make payment, and not under section 2717 et seq., which prescribes the proceedings againstexecutorsfortheenforcement of claims of creditors and legatees.
    Application by Matthew Byrnes, one of the legatees under the will of Matthew Byrnes, deceased, for a payment on account of income.,' Code Civil Proc. N. Y. § 2717 et seq., prescribes the method by which the payment of claims of creditors and legatees may be enforced against the executors; and sections 2804, 2805, prescribe the method by which testamentary trustees may be compelled to pay the claims of beneficiaries.
    
      Hess, Townsend c& McClelland, for petitioner.
   Ransom, S.

This is an application by one of the beneficiaries under the will of the decedent fór a payment on account of income. Letters were issued April 1, 1890. The petitioner is entitled, under the fifth clause of the will, to one-sixth of the income of the residue, payable in January and July of each year. He alleges that the executors have $12,000 of accrued income, and refuse to pay. The respondents filed no answer, but it was claimed by them on the argument that, inasmuch as a year had not elapsed, the petitioner must bring himself within section 2719 of the Code, which provides for the only case where a legacy or other pecuniary interest under a will can be paid by executors before the expiration of a year, viz., for support and maintenance; and that, the petition being silent in this regard, the motion should be dismissed. Counsel for the petitioner undoubtedly thought that the appropriate proceeding to procure the relief sought was under section 2717 et seq., and, in the brief filed, the application is stated to be made under that section. The citation runs against the respondents only as executors. It seems to me plain that the fifth clause of the will constituted the' respondents testamentary trustees of the portion of the residue disposed of thereby, and it is under this clause that the petitioner is entitled to the income to secure the payment of which this application is brought. This being so, his application must be brought under sections 2804 and 2805 of the Code, and the respondents should have been cited in their capacity as testamentary trustees. To constitute a testamentary trustee, it is necessary that some express trust be created by the will. Merely calling an executor a trustee does not make him such. In re Hawley, 104 N. Y. 250, 10 N. E. Rep. 352. By the clause of the will in question the testator devised to his executors the residue of his property in trust during the life-time of two of his great-grandchildren, for whose benefit a provision was made during their lives. The trustees were authorized to mortgage or lease the real estate, to receive the rents, issues, and profits, and to pay the same to the beneficiaries in the proportions provided. It seems to me clear that this constituted an express trust, under the Revised: Statutes, the essential requisite to the creation of a testamentary trustee. The respondents not having been cited in this capacity, the application must be dismissed. 
      
       4 Rev. St. N. Y. (8th Ed.) p. 2437 § 55.
     