
    In the Matter of the Accounting of August Horrmann et al., as Trustees under the Will of Paula E. Uhl, Deceased.
    Surrogate’s Court, Richmond County,
    June 30, 1948.
    
      
      Guggenheimer & Untermyer for trustees.
    
      David JR. J. Arnold, special guardian for Elinor E. Uhl and another, infants, and for all unborn lawful issue of William C. H. Uhl and others.
   Boylan, S.

The trustees, August Horrmann and Carl W. Badenhausen, have filed an intermediate account and August Horrmann has requested that he be permitted to resign as trustee, - and that the Bankers Trust Company be appointed substituted trustee.

Decedent disposes of her residuary estate by clause sixth of her will. One quarter of the residuary was placed in trust for the benefit of her daughter, Alice Yvonne Lieberman, and one quarter was placed in trust for the benefit of her granddaughter, Elinor Elizabeth Uhl, who is an infant. With regard to each of these trusts, the decedent authorized and empowered my individual trustees, so long as any one or more of them may be acting as such ” to pay to the beneficiaries out of the corpus of the trust such part of the principal as they may deem proper, but in no event more than $50,000. The decedent in paragraph third of her will provided “ wherever in this Will * individual ’ executors or trustees are referred to, it shall be deemed to exclude any corporate executor or trustee ”. In each provision wherein the decedent gave tfie trustees the right to invade the corpus of the trust she used the words individual trustees ”. It is obvious that she intended that the right to invade the corpus of the trusts was to be limited to her individual trustees, August Horrmann and Carl W. Badenhausen. It is apparent from a reading of the appropriate provisions of the will that if, and when, the corporate trustee is appointed it shall be devoid of any power to invade the corpus of the trusts for the purpose of paying the amounts authorized.

The account sets forth that the infant Elinor Elizabeth Uhl has received principal payments totalling $26,947.48 and Alice Yvonne Lieberman, $31,732.94. It is of the utmost importance that the right given to the infant Elinor Elizabeth Uhl and Alice Yvonne Lieberman to receive payment from the corpus of the trust up to $50,000 each in the discretion of the said Trustees be preserved. The resignation of August Horrmann as one of the trustees would seriously affect the interests of the infant and Alice Yvonne Lieberman, since it would leave only one remaining individual trustee to approve such payments. At the present time the right to withdraw is predicated upon the lives of two individual trustees and permitting the'resignation would limit the right to the life of the remaining trustee.

The court at this time denies the request of August Horrmann to resign as trustee.

No objections having been filed to the account, enter decree judicially settling same and in accordance herewith.  