
    In the Matter of the Petition of Oscar C. Miller, Appellant, for a Decree Directing Payment to Him by Testamentary Trustees of Estate of Sarah Akin, Deceased. Albro Akin et al., as Trustees, et al., Respondents.
    
      Matter of Miller, 171 App. Div. 239, affirmed.
    (Submitted October 6, 1916;
    decided October 24, 1916.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 11, 1916, which affirmed a decree of the New York County Surrogate’s Court denying the application of petitioner for payment to him of the income of a certain trust fund created by the will and codicil of Sarah Akin, deceased, by which she bequeathed to her trustees $25,000, directing that they collect the income thereof, and “in their discretion, and from time to time, to pay the whole of the net income arising therefrom either to my nephew, Oscar Clark Miller, or to his wife, Julia Miller, or a portion of such income to one, and the remaining portion to the other, during the term of the life of said Oscar Clark Miller. ” The petitioner having obtained a divorce from his wife, the trustees determined to pay the whole of the income arising from the trust fund to her. The petitioner thereupon brought this proceeding under section 2689 of the Code of Civil Procedure.
    
      Samuel Dickstein for appellant.
    
      Paul E. Whitten for trustees, respondents.
    
      Mark M. Sehlesinger for Julia Miller, respondent.
   Order affirmed, with costs; no opinion.

Concur: Hiscock, Chase, Guddeback, Hogan, Cardozo and Pound, JJ. Absent: Willard Bartlett, Oh. J.  