
    In the Matter of the Estate of Terence W. McGowan, Deceased.
    Surrogate’s Court, New York Comity,
    June 3, 1938.
    
      John J. Ryan, for the petitioner.
    
      Philip J. O’Brien, for the respondent.
   Foley, S.

A question of construction is presented in this accounting proceeding by reason of the fourth paragraph of the will which reads as follows:

“ Fourth. I give, devise and bequeath to my brother John McGowan, the sum of Two thousand dollars, said money shall be placed in trust, and Twenty-five dollars shall be given to him by my executor, monthly, until the said $2,000 has been used up.”

The accountant has been acting as trustee of this fund and by reason of payments made there is a balance to the credit of the fund of $750.

The legatee is now dead and an administratrix has been appointed for his estate. She demands from the accountant that the balance be paid over to her, asserting that no valid trust was created by the fourth paragraph of the will. She contends that the bequest was a general legacy of $2,000 to be paid at the rate of $25 a month until the fund was exhausted. That construction of the will is correct. The legatee had a vested interest in the fund. No trust was created but payment only deferred. (Matter of Trumble, 199 N. Y. 454; Warner v. Durant, 76 id. 133.)

Submit decree on notice construing the will and settling the account accordingly.  