
    Matter of the Estate of Conrad R. Gross, Deceased.
    (Surrogate’s Court, New York County,
    March, 1915.)
    Wills — provisions of codicil — direction to trustees as to trust fund — authority to executor to pay such part of principal as deemed prudent — when right to principal of trust fund absolute.
    A provision in a codicil which purports to limit or defeat a bequest given by a will will not be given this effect unless the language of the codicil is as clear and explicit as that of the will to which it relates.
    Testator by his will directed his trustees to set apart the sum of $20,000 for each of his daughters and pay the income thereof to each of them, and directed that $3,000 of the principal be paid to each upon her marriage and that the unimpaired principal in the case of an unmarried daughter, or the remaining principal in ease of a married daughter, be paid to each when the youngest child surviving testator reaches majority. By a codicil the executors were authorized and empowered in their discretion to pay to said daughters such part of the principal as they might deem prudent. .Held, that upon the youngest daughter reaching her majority her right to the principal of the trust fund, and also that of her sisters, was absolute, and not subject to the discretion and approval of the trustee.
    Application for the construction of a will under section 2615 of the Code of Civil Procedure.
    Herbert H. Flagg, for petitioner.
    Walter Lindner, for George Herbener and August Gross, executors.
    Peter J. McCoy, Jr., for respondent Lena Gross.
   Fowler, S.

This is an application for a construction of testator’s will under section 2615, Code of Civil Procedure. The petitioner is a legatee named in the will. Prior to the commencement of this proceeding she made an application for the payment of her legacy, hut this court denied the application upon the ground that it would be necessary to construe the will before the question of her right to the legacy could be determined.

In subdivision b of paragraph fifth of the decedent’s will he directed his trustee to set apart the sum of $20,000 for each of his daughters and to “ invest the same and collect the interest and income thereof, and to pay such interest and income to my said daughters respectively. In case any of my daughters marry after my death, my said executors and trustees are directed to pay to such daughter upon her marriage the sum of $3,000 out of the sum of $20,000, held in trust for such daughter. My said executors and trustees are directed to pay said sum of $20,000, or the sum of $17,000.remaining in case either of my daughters shall have married after my death, to my said daughters respectively, when my youngest child surviving me comes of the age of 21 years.” A codicil to the will contains the following provision: “And I do hereby further authorize and empower my said executors in case they in their discretion shall deem it prudent and wise to pay over to my said daughters or to either of them so much of the principal sum so set apart for my said daughters as they may deem proper.”

The petitioner is the testator’s youngest child, and she became twenty-one years of age on the 9th of June, 1910. She is not married. She contends that she is now entitled to the sum of $20,000, set apart for her in subdivision b of paragraph fifth of her father’s will. The trustees contend that under the" provisions of the codicil above quoted they are vested with discretion as to the amount which they may pay the petitioner, and the time when such payment may be made. I am inclined to think that it was the intention of the testator in subdivision b of paragraph fifth that his executors should pay to each of his daughters who got married after his death the sum of $3,000 upon her marriage, and the balance of $17,000 when the youngest child arrived at the age of twenty-one years, and that they should pay to each of his daughters who did not get married before the youngest child arrived at the age of twenty-one the sum of $20,000 when such youngest child had arrived at the age of twenty-one, and that by the codicil he intended to empower his executors' to pay any of his daughters prior to the date of distribution of the principal sum of $20,000, such part of said principal sum as they in their discretion deemed prudent. It is probable that ' the testator felt that the income from $20,000 might not be sufficient for the support and maintenance of any of his daughters who might remain unmarried until the youngest arrived at the age of twenty-one, and that it was to supply this deficiency that he empowered his executors in the codicil to pay to either of his daughters such sums from the principal as they considered advisable. There is nothing in the codicil which would indicate that it was the intention of the testator to limit the legacy given in subdivision b of the will. Reading the will and codicil together, and according to each of them the meaning above indicated, their provisions are not repugnant; both may be given effect. But giving to the codicil the meaning contended for by the executors would limit the clear and precise provision contained in the will for the benefit of decedent’s daughters. A provision in a codicil which purports to limit or defeat a bequest contained in the will will not be given this effect unless the language of the codicil is as clear and explicit as that of the will to which it relates. Adams v. Massey, 184 N. Y. 62; Matter of Hoffman, 140 App. Div. 121. I will therefore hold that the petitioner is entitled to payment of the sum of $20,000 bequeathed to her under subdivision b of paragraph fifth of decedent’s will.

Decreed accordingly.  