
    J. Walter Merritt, App’lt, v. Jacob Corlies, Ex’r, et al., Impl’d, Resp’ts.
    
      (Supreme Court, General Term,, Second Department,
    
    
      Filed July 28, 1893.)
    
    1. Will&emdash;Trust&emdash;Abrogation.
    Where a discretionary power is vested in the trustee a court of equity will not assume the power to abrogate the trust, especially in the absence of proof of misconduct on the part of the trustee.
    3. Same&emdash;Conflict of laws.
    The property of a decedent is to be distributed in accordance with the laws of the state of which he was a resident at the time of his death, and not those of an heir or beneficiary.
    Appeal from order sustaining demurrer to the complaint.
    Action to procure a decree to have plaintiffs share of his mother’s estate paid over to him.
    The mother’s will gave the residue of her estate to her executors in trust to divide the same into shares and hold one of said shares for each of her sons, with provisions as to the remainders, and also gave the executors and trustees the power to pay over any part, or the whole, of the share held for any child to such child whenever they are satisfied that it is safe and prudent and for the best interests of such child and liis family.
    The complaint alleges that plaintiff is a person of sound mind, not intemperate, wasteful or profligate, not financially embarrassed and is a good business man; that it would be safe and prudent and for the best interests of himself and family that the fund should be paid to him; that he is a resident of the state of Georgia, and that, under the laws of that state, no person can hold property as trustee for a person of sound mind and sober habits, whether as an estate in fee simple or as an estate for life; if only a life estate, he may hold it in possession, subject only to the rights of such remainder or reversion as may be fixed upon it.
    The defendants demurred on the ground that there was a defect of parties defendant, and that the complaint did not state facts sufficient to constitute a cause of action.
    
      S. K. Phillips (Robert L. Rodgers, of counsel), for app’lt; Herrick & Losey, for resp’ts.
   Pratt, J.

There is neither reason nor authority to support the contention of the plaintiff.

The plaintiff has referred us to many decisions laying down undoubted rules of law, but the difficulty with them is they have no application to the case in hand.

By a reference to the will, it will be observed that a discretionary power is vested in the trustees, and a court of equity will not assume the power to abrogate such p, trust, especially in the absence of proof of misconduct on the part of the trustee.

The contention that the property claimed should be distributed under the laws of the state of Georgia, where he resides, has no merit. The testator lived, made his will, and died in New York, and the property is located in this state and must be distributed under the laws thereof. Cross v. U. S. Trust Co., 131 N. Y., 380; 43 St. Rep., 254.

The case is too plain to admit of discussion.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  