
    Matter of the Judicial Settlement of the Account of Calvin F. Barber, as Executor of the Last Will and Testament of Thomas N. Dwyer, Deceased.
    (Surrogate’s Court, Kings County,
    December, 1901.)
    Trust in personalty — Merger in remainder under L. 1897, ch. 417, § 3.
    A beneficiáry of the income of a testamentary trust in personalty, enduring for his life or a shorter term in the discretion of the trustee, and entitled to the undisposed remainder as the only next of kin of the testator, has an absolute right under L. 1897, ch. 417, § 3, to determine the trust, and obtain possession of the corpus, by releasing his interest in the income, and the court has no discretion in the matter.
    Proceedings upon the judicial settlement of the accounts of an executor.
    James and Thomas H. Troy, for executor.
    William D. Veeder, for objector.
   Abbott, S.

The estate vested in the trustee is limited to the period of the life of Frank J. Dwyer, and in the discretion of the trustee may be sooner terminated. The remainder is undisposed of by the will and vested at once in the testator’s only next of kin, Frank J. Dwyer.

Thus the conditions prescribed by section 3 of the Personal Property Law (Laws of 1897, chap. 417) are all fulfilled. We have a beneficiary of a trust for the receipt of the income of personal property, who is entitled to a remainder in the principal fund, subject to his beneficial estate for life or a shorter term.

The statute provides that under- these circumstances the beneficiary may release his interest in the income, and thereupon the estate of the trustee shall cease, and the trust estate merges in the remainder.

The release prescribed by the' statute has been executed and the trust estate has merged in the remainder.

I fully appreciate the force of the argument of the learned counsel for the trustee as to the extreme undesirability of turning over the principal fund to the beneficiary. I have no discretion in the matter, however. The beneficiary has executed a proper release in consequence of which the trust estate has already merged in the remainder.

Decree may be presented in accordance herewith on two days’” notice.

Decreed accordingly.  