
    In the Matter of the Construction of the Will of Ella B. Davis, Deceased.
    Surrogate’s Court, New York County,
    January 22, 1959.
    
      James A. McKaigney for Dorothy Tierney, as executrix, petitioner.
    
      Marie C. Connolly, as special guardian for Bichard C. Finnegan, an infant, respondent.
   Joseph A. Cox, S.

The decedent herein under paragraph Sixth of his will bequeathed two thirteenths of 90% of her residuary estate to her infant grandnephew Bichard Finnegan by the following provisions of her will:

“Sixth: * * *
“ (b) with respect to the remaining 90% of my said residuary estate, I direct my Executrix hereinafter named to divide the same into thirteen equal parts and I give, devise and bequeath the same as follows:
# * *
“ (iv) Two (2) such equal parts to my grandnephew, biohabd 6. FIUHEGAN.
If any of the above named residuary legatees and devisees under this subparagraph (b) hereof shall predecease me, I direct that the share, part or portion to which such legatee and devisee, so dying, would have been entitled shall be divided pro-rata among the surviving legatees and devisees.”

Paragraph Seventh of decedent’s will which is the subject of this construction proceeding reads as follows:

“ Seventh: If my grandnephew, richard g. einnegan, shall be a minor at the time his share of my estate shall become payable in final distribution, such share shall be held by my Executrix for him, and my Executrix is authorized in her sole discretion to pay, apply or accumulate the net income or to pay or apply the principal for his benefit, paying income accumulations, if any, to him upon attaining the age of twenty one years together with the then principal of his share, and my Executrix shall have the same management powers and duties with respect to any such share as those which are hereinafter granted to my said Executrix.”

It is apparent and this court holds that it was the intention of the testatrix to make an absolute gift to her grandnephew which vested in him at the time of her death and to create a power in trust in the executrix for the management and control of the fund during the infant’s minority. (Matter of Kellog, 187 N. Y. 355; Matter of Babbage, 201 Misc. 750; Downing v. Marshall, 23 N. Y. 366; Beal Property Law, § 131.) As the will provides that the executrix file no bond, a certificate will issue to the said executrix as donee of a power in trust without bond.

Submit decree construing the will accordingly.  