
    Warren W. Button, Respondent, v. Mildred Hemmens, Impleaded with Josiah G-. Salisbury, as Administrator with the Will Annexed of Sarah J. Davis, Deceased and Others.
    
      Trust to pay over the income and, in the discretion of the trustee, the principal of ,a trustfund to the cestui que trust &emdash; on the death of the trustee the discretionary power to pay over the principal vests in the court, to he exercised only on proof of the necessity therefor.
    
    The will of a testator provided, “ I give and bequeath to my executor hereinafter named in trust for my brother Warren W. Button, all the remainder of my property and estate to be invested, and such portion of the interest and principal as in the judgment of my said executor as may be proper for his use shall be paid to him annually towards his support; but in no case shall any portion/be
    ■ applied in payment of any judgment, claim' or cause of action now or hereafter existing against him, nor upon any claim or demand against him which is not appraised by said executor. My said executor may at any time when he deems it for the interest of my said brother pay over to him the whole or any part of the principal. My said executor may invest at such rate of interest as he may deem best for the security of the principal at less than the legal rate.” The executor and trustee died and an administrator with the will annexed was appointed.
    
      Held, that the trust did not terminate upon the death of the trustee, but that it vested in the Supreme Court to be exercised by its appointee or the administrator with the will annexed, the substituted trustee;
    That it was the duty of the administrator with the will annexed to pay the income of the trust fund yearly to the cestui que trust and so much of the principal tliereof as the court, in its discretion, should say was proper and necessary for his support;
    That this discretion of the court was not an arbitrary discretion, and could only be exercised upon evidence showing the circumstances and necessities of the cestui quo trust, and that, in the absence of any proof upon that subject, it waa improper for the court to direct the administrator with the will annexed to pay over to the cestui que trust the principal of the trust fund. .
    Appeal by the defendant, Mildred Hemmens, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 25th day of March, 1903, upon the decision of the court, rendered after a trial at the Saratoga Special Term, directing Josiah Gf. Salisbury, the administrator with the will annexed of Sarah J. Davis, deceased, to pay over to the plaintiff the full amount of the estate intrusted to him.
    Upon the 14th of January, 1897, Sarah J. Davis died at Saratoga Springs, N. Y., leaving a last will and testament with a codicil thereto, which read as follows :
    “ In the name of God, Amen: I, Sarah J. Davis, of Saratoga Springs, N. Y., being of sound mind and memory and considering the uncertainty of this frail and transitory life, do therefore make, ordain, publish and declare this to be my last will and testament, that is to say:
    “ First. After all my lawful debts are paid and discharged, I give and bequeath to my beloved sister, Amy C. Marshall, of Williamstown, N. Y., the sum of five hundred ($500) dollars, and "all my household furniture, wearing apparel and jewelry.
    “ Second. I give and bequeath to my executor hereinafter named in trust for my brother Warren W. Button, all the remainder of my property and estate to be invested and such portion of the interest and principal as in the judgment of my said executor as may be proper for his use shall be paid to him annually towards his support; but in no case shall any portion be applied in payment of any judgment, claim or cause of action now or hereafter existing against him, nor upon any claim or demand against him which is not appraised by said executor. My said executor may at any time when he deems it for the interest of my said brother pay over to him the whole or any part of the principal. My said executor may invest at such rate of interest, as he -may deem best for the security of the principal, at less than the legal rate.
    “ Likewise I make, constitute and appoint J ohn W. Crane of Saratoga Springs to be executor' of this my last will and testament hereby revoking all former wills by me made.
    “ In witness whereof, I have hereunto subscribed my name and affixed my seal the 22nd day of June, in the year of our Lord, one thousand eight hundred and ninety-five.
    . “SARAH J. DAVIS, [l. s.] ” *
    “ Codicil.
    “Whereas, I, Sarah J. Davis, of Saratoga Springs, N. Y., have made my last will and testament bearing date the 22d day of June, ■ 1895, in and by which I gave and bequeathed to my sister Amy C. Marshall, the sum of five hundred dollars ($500), and all-my household furniture, wearing apparel and jewelry.
    “Now, therefore, I do by this writing, which I hereby declare to be a codicil to my said last Wfil and testament, and to be taken as a part .thereof, order and declare that only the sum of fifty dollars ($50) be paid to my said sister, Amy C. Marshall, and the said clause of my will above quoted is hereby revoked so that only the said sum, of fifty dollars shall be paid to her in full and in place of said legacy bequeathed to her in said will, I devise and bequeath the remainder" of said legacy to my brother, Warren W. Button, named in the. second clause of my said will, subject to the same trusts as therein mentioned.' In all other respects I hereby ratify and confirm my said Will and direct that this codicil be annexed to and made a part of my said last will and testament.
    “ In witness whereof I have hereunto set my hand and seal this fourteenth day of March, 1896.
    “Mrs. SARAH J, DAVIS.”
    John W. Crane, the executor named in the will, qualified and .took possession of the estate, which consisted entirely of personal property. In his lifetime he paid to the plaintiff in this action the sum of $1,400./ Upon the 26th of August, 1900, the said Crane died. Thereafter Josiah Gr. Salisbury was appointed by the surrogate of Saratoga county administrator with the will annexed of Sarah J. Davis, and also the trustee under the will in the place of said John W. Crane. He duly qualified as such administrator and trustee, and received, the'sum of about $2,700 from the estate of John W. Crane as the estate of said Sarah J. Davis undisposed of during the lifetime of said Crane. The said Salisbury, doubting his power as administrator with the will annexed, to pay over to the plaintiff these moneys, refused to pay to him any part thereof, and this action was brought against the said Salisbury and others, including Mildred Hemmens, a niece and one of the next of kin of Sarah J. Davis, to compel the said administrator to pay over the full amount remaining unpaid of said estate to the plaintiff. The trial court directed the said administrator to pay over to the plaintiff' the full amount of said estate, and.from the judgment entered upon this decision Mildred Hemmens, one of the next of kin of Sarah J. Davis, here appeals.
    
      Wash PocTcwood, for the appellant.
    
      W. A. Pierson and Charles 8. Lester, for the respondent.
    
      
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   Smith, J.:

The express trust created by the will of Sarah J. Davis did not ■ terminate upon the death of the trustee. It then vested in the Supreme Court to be exercised through its appointee, or the administrator with the will annexed, the substituted trustee. (Matter of Valentine, 3 Dem. 563 ; Matter of Hecht, 71 Hun, 63.) After the death of Crane, therefore, this substituted trustee was required to pay the income of the said fund yearly to the plaintiff, and so. much of the principal as the court, in its discretion, should say was proper and necessary for his support. This discretion of the court, however, is not an arbitrary discretion and can only be exercised upon evidence showing the circumstances and necessities of the cestui que trust. Upon the trial of this action there was no evidence whatever upon which could be based a finding that the plaintiff was in need of any more than the income of the trust fund, and the direction of the court, therefore, to pay over the principal thereof as well as the income was clearly unauthorized.

The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant in this court and the court ■ below to be paid out of the estate of Sarah J. Davis.

All concurred; Parker, P. J., in result; Houghton, J., not sitting.

Judgment reversed and new trial granted, with costs to appellant in this court and in the court below to be paid out of the estate of Sarah J. Davis, deceased.  