
    In the Matter of the Accounting of Anna Ryan et al., as Executors of and Trustees under the Will of Eugene J. Flood, Deceased, Appellants. Susie E. Murray et al., Respondents.
    (Argued September 27, 1926;
    decided October 12, 1926.)
    
      Will — trust — direction in will that as much as necessary of income and principal be used for support of cestui que trust — discretion vested in trustees subject to scrutiny as to possible fraud or diversion.
    
    
      Matter of Flood, 216 App. Div. 711, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 19, 1926, which unanimously ■affirmed a decree of the New York County Surrogate’s Court construing that portion of the will of Eugene J. Flood, deceased, which directed the trustees to properly maintain and support his mother out of the income and so much of the principal as might be . necessary and divide the surplus income, if any, between his three sisters. The trustees contended that remaindermen had no standing to inquire into the necessity for expenditures made in accordance with such direction. The surrogate held: “ (1) The discretion vested in the trustees to support Bridget Flood is not absolute, but subject to scrutiny as to possible fraud or diversion. This right of scrutiny may be invoked by any party interested as a secondary or a contingent life tenant entitled to the surplus income, or, in case of a possible invasion of the principal, by a remainderman. (2) By the use of the words ‘ used,’ ‘ applied,’ ‘ maintained ’ and ‘ supported ’ in the will the trustees are charged with duty of seeing that the funds are properly applied to the support of Bridget Flood, and are not used in violation of the trust for the use of some other person.”
    Order affirmed, with costs;
    
      Matthew J. Wheelehan and Howard A. Sperry for appellants.
    
      Arthur T. O’Leary and Isidor Enselman for respondents.
   no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Andrews, JJ. Absent: Lehman, J.  