
    In the Matter of the Estate of Albert C. Whitaker, Deceased.
    Surrogate’s Court, New York County,
    February 6, 1958.
    
      
      Rodney K. Frasee for Baxter Whitaker, infant, petitioner.
    
      Louis G. Pulvermacher for Sterling National Bank and Trust Company, respondent.
   Joseph A. Cox, S.

This is an application by the infant in which his mother, the former general guardian, joins to revoke the letter of guardianship of the property issued to the Sterling National Bank & Trust Company.

The guardian of the property receives monthly payments from the National Bank of West Virginia at Wheeling, the trustee under the will of Albert C. Whitaker, the grandfather of the infant. The petitioners contend that these payments do not constitute income from the trust under the will of the grandfather but are payments for maintenance of the infant chargeable to the interest of the father of the infant who is also a beneficiary under the will of Albert C. Whitaker. It is asserted therefore that the guardian of the property may not withhold from the payments received by it a sum sufficient to cover income taxes of the infant. There is no merit to this latter contention since there are letters from the National Bank of West Virginia at Wheeling dated January 13, 1956, April 9, 1956 and April 19, 1956 addressed to the mother of the infant at a time when she was the guardian of the property appointed by this court and copies of which letters are in the files of this court advising her that the trustee in filing its fiduciary return was not paying the tax but that the income tax would have to be paid by the income beneficiary of the trust.

The present application is therefore denied without prejudice to a renewal when a determination of the nature of the infant’s interest in his grandfather’s will is made by the court in West Virginia having jurisdiction of the estate of the grandfather, Albert C. Whitaker, or proof that the trustees of that estate have discharged the infant’s obligation in respect to income taxes subsequent to the year 1954.

Submit order on notice.  