
    ESTATE OF BYRNES.
    
      N. Y. Surrogate's Court;
    
    
      March, 1891.
    1. Executor^ Where an executor is a testamentary trustee, an application to the surrogate by a beneficiary to compel a payment of income cannot be made under Code Civ. Pro. § 2717, citing respondent as executor, but he must be cited as a testamentary trustee in an application under §§ 2804, 2805.
    a. The same; testamentary trustee.] A will devising to executors • the residue of testator’s property, in trust during the life of two grandchildren, authorizing them to mortgage or lease the real estate ; to receive rents and profits, and to pay the same to designated beneficiaries, creates the executor’s testamentary trustees.
    Application of Matthew Byrnes for payment of income due him under the will of Matthew Byrnes, ■deceased.
    
      Hess, Townsend & McClelland, for petitioners.
   Ransom, S.

This is an application by one of the beneficiaries under the will of the decedent for a payment on account of income. Letters were issued April 1, 1890. The petitioner is entitled under the fifth clause o’f 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 (Matter of Hawley, 104 N. Y. 250). By the clause of the will in question the testator devised to his executors the residue of his property in trust during the lifetime of two of his great-grandchildren, for whose benefit a provision was made during there 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.  