
    In the Matter of the Judicial Settlement of the Account of William N. Bavier and Nathaniel A. McBride, as Executors and Trustees under the Last Will and Testament of Mary A. S. Burns, Deceased. William N. Bavier and Nathaniel A. McBride, as Executors of and Trustees under the Last Will and Testament of Mary A. S. Burns, Deceased, and Others, Appellants; Daniel J. Mooney, as Special Guardian for Mary Burns, Respondent.
    (No. 1.)
    First Department,
    November 6, 1914.
    Will construed—trust for benefit of incompetent person — failure of trustee to expend entire income is not unlawful accumulation.
    Where a will creating a trust for a beneficiary of feeble mind, but who has not been judicially declared insane, contains no express provision for an accumulation of income, nor any express disposition over of any accumulated income, but merely directs the trustees to apply the income in such manner as they may think proper for the care and comfort of the beneficiary, the trustees, by failing to expend all of the income for the support and maintenance of the beneficiary, are not making an unlawful accumulation; they aré merely exercising the discretionary power conferred upon them, and they hold the surplus income to expend the same for the benefit of the incompetent when circumstances so require.
    Appeal by William N. Bavier and another, as executors and trustees, etc., and others, from part of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 11th day of February, 1911, upon an accounting involving the construction of the will of Mary A. S. Bums, deceased.
    
      J. Addison Young, for the appellant William N. Bavier, as trustee, etc.
    
      Bowers & Sands, for the appellant Nathaniel A. McBride, as trastee, etc.
    
      August C. Nanz, for the appellant Robert N. Bavier.
    
      Daniel J. Mooney, special guardian for Mary Burns, for the respondent.
   Clarke, J.:

The testatrix, Mary A. S. Bums, died leaving a last will and testament and codicil thereto, which were duly admitted to probate and letters testamentary issued thereon October 21 1905.

By the 9th clause of her will she left all the rest, residue and remainder of her estate to trustees therein named, in trust, to convert the same into money at such times after my decease as they may deem proper; * * * to invest the proceeds of such sale, and all money which may remain in my estate after the payment of my debts and the aforementioned legacies, in bonds secured by first mortgage on improved real estate in the City of New York and to apply the income therefrom in such manner as they may think proper, to the care and comfort of my daughter, Mary Bums.

Tenth. If my daughter, Mary Burns, should die leaving issue her surviving, then, after the death of my said daughter, I give and bequeath all my estate as described in the ninth clause of this will, unto such of the issue of my daughter and in such proportions as my said daughter may by her last will and testament appoint, and in default of such appointment, then to such issue and their heirs, share and share alike, per stirpes and not per capita.”

By the 3d clause of her codicil she revoked entirely the 11th clause of her will, substituting the following provision: “After the death of my daughter, Mary Burns, and in the event of my said daughter leaving no issue surviving her I give and bequeath ” (setting forth a number of legacies).

The 12th clause of the will, as amended by the 4th clause of the codicil, provided as follows: “ In the event of the death of my said daughter leaving no issue her surviving, I give and bequeath the remainder Of my estate as described in the Ninth clause of this Will, unto William N. Bavier of New Rochelle in the State of New York, a nephew of my late husband Robert Bums (the same William N. Bavier named herein as trustee and executor), his heirs and assigns. In case of the death of the said William N. Bavier before the death of my said daughter, and in the event of the death of my said daughter leaving no issue her surviving, I give and bequeath the said remaining one-half of my said estate to such persons as "the said William N. Bavier may by his Last Will and Testament appoint, and in default of such appointment, then to his heirs at law, share and share alike, per stirpes and not per capita.”

Upon the accounting it appeared there was a cash balance of income in the hands of said executors and trustees of $8,969.31. It also appeared that the surrogate on his own motion had appointed a special guardian of Mary Bums, “who although not judicially declared to be incompetent is. a person not able to understand the nature and character of the proceedings herein.”

The surrogate held that there was an unlawful accumulation of income, and the decree provided “ that an inquiry be had within one hundred and twenty days from the entry of this decree as to the competency or incompetency of Mary Burns according to the law and upon proof to this court of such proceedings and the judgment thereon, the Trustees may apply to this Court at the foot of this decree for further instructions as to the balance of income remaining in their hands, which is adjudged to he the property of Mary Burns.”

It is from that portion of the decree that this appeal is taken. There is no express provision in this will for accumulation of income, or any express disposition over of any accumulated income. The language of the will is “to apply the income therefrom in such manner as they may think proper to the care and comfort of my daughter, Mary Burns.” There is no provision for the application of any stated time or period, and discretion is lodged in the trustees to apply the income in such manner as they may deem proper. While it appears that there is a sum held by them as income from the estate which they have not yet deemed proper to expend for the care and comfort of their cestui que trust, it does not at all appear that the time may not come when in their judgment such additional expenditure may be proper. She is an unmarried woman, of the age of thirty-five, and it is not unreasonable to suppose that contingencies may arise which would authorize or justify the trustees to expend for her care and comfort the amount of the income now in their hands, not as a balance of income directed to he accumulated by the will, but held as an amount not yet deemed proper by them to expend for her care and comfort.

In Hill v. Guaranty Trust Co. (163 App. Div. 374) this court has recently had occasion to consider the question involved here. In that case the will gave the residuary estate to the executors and trustees, in trust, “ to receive the rents, issues, income and profits thereof and to apply the whole, or such portions of such rents, issues, income and profits, as my said executors and trustees may deem advisable, for the use and benefit of my son Alphonse Joseph Stephani, during his natural life.” The cestui que trust was a life convict at the time of the making of the will, and subsequently was transferred to the State Asylum for Insane Convicts. In the exercise of the discretionary power given them by the will, the trustees had applied to his use from the trust income only such comparatively small sums as might properly be expended to promote his comfort in the State asylum, and there had accumulated in their hands an undisposed of income amounting to over $22,000. The action was to construe the will, settle the accounts of the trustees thereunder, and recover accumulated income in their hands. The plaintiff was the remainderman. This court, reviewing the authorities, held that the will did not, either expressly or by necessary implication, direct any accumulation of the income; that although a considerable surplus had been accumulated, it was by no means certain that circumstances might not arise, before the termination of the trust, under which the trustees might deem it advisable to apply all this income to the use and benefit of the beneficiary, and that the trustees should continue to hold the income not immediately applied, subject to its future application, if they deemed it advisable, for the cestui que trust’s use and benefit.

We think, as the question here involved has so recently been determined by that well-considered case, it is unnecessary to discuss it further. So much of the decree as is appealed from should be reversed, and a clause should be inserted in the decree providing that the trustees hold the said amount in their hands subject to the provisions of the will affecting income, with costs to the trustees and guardian ad litem payable out of the estate.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Decree, so far as appealed from, reversed, and clause inserted as directed in opinion, with costs to the trustees and guardian payable out of the estate. Order to be settled on notice.  