
    In the Matter of the Application of Laura Brenton McCormick, Appellant, and Edgar W. Abbot and Charles C. Cummings, Respondents, as Testamentary Guardians of Theodora Brenton Eliot McCormick, an Infant, under the Will of Eliot McCormick, Deceased, for an Order Authorizing the Application of the Income of said Infant’s Property for her Support, etc.
    
      Will — direction to apply the net income of a fund to the support, eta., of an infant — it docs not require that the entire income he expended as received — costs of an application to compel its expenditure.
    
    Where the will of a testator directs trustees named therein to set apart a share of his estate for the benefit of his children, and “to apply the net income of each child’s share to the support, maintenance and education of said-child until such child arrives at the age of twenty-one years, when the principal of such share shall be paid to such child,” the trustees are not bound (the testator having left only an infant daughter surviving him) to apply the whole income of the infant’s share to her support, maintenance and education as fast as such income ■ . accrues, but may apply the income in such a way as to meet her growing needs as she becomes older.
    Where the widow of the testator, who was one of the testamentary guardians of the infant, and who had the actual custody of the latter, makes application to the surrogate for an order requiring the trustees to apply the entire income of the infant’s share as it accrues to the infant’s support, and such application is successfully contested by the trustees, the surrogate is authorized, by section 2561 of the Code of Civil Procedure, to allow the trustees costs.
    Appeal by Laura Brenton McCormick, as one of the testamentary guardians of Theodora Brenton Eliot McCormick, an infant, from an order of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 4th day of February, 1898, denying her application to vacate a prior order of the court making an annual allowance of $1,050, or so much thereof as should be necessary, for the support of the infant, or to modify the same by directing the other testamentary guardians to pay to the petitioner for the support of said infant, such income from the infant’s estate as might be on hand, together with all income which might thereafter accrue from said estate, except from so much thereof as:
    
      First. Authorizes and directs the application of at least nine hundred dollars ($900) per annum, for the support, education and maintenance of said infant. And
    
      
      Second. Directs the payment of the sums of seven hundred and five and dollars ($705.91), and one hundred and two! and dollars ($102.40) to the appellant. And
    
      Third. Directs the payment of the sum of fifty dollars ($50) to Edwin Kempton, Esq., special guardian herein. And' !
    
      Fourth. Permits the parties hereto to “at any time hereafter apply, on sufficient cause being shown, for an increase of such sum of nine hundred dollars ($900).” 1
    
      William R. Wilder [John Ewen with him on the brief], for the appellant.
    
      George G..Dutcher, for the respondents.
    
      Edwin Kempton, special guardian.
   Willard Bartlett, J.:

. The appellant was the wife of Eliot McCormick, who died in 1891, leaving her surviving him as his widow, and one child, Theodora Brenton Eliot McCormick, who was then, about one’ year old. By his will he devised and bequeathed to Edgar W. Abbot and Charles C. Cummings, as trustees, one-hálf of all his property in trust, to divide the same into as many equal shares as he should leave children surviving him, “ and to set apart one for each child, and to apply the net income of each child’s share to the (support, maintenance and education of said child until such child arrives at ' the. age of twenty-one years, when the principal of such share shall be paid to such child.” The testator appointed his wife and the two trustees above named guardians of his infant child.

In 1896, these three guardians presented a petition to the Suíto- ' gate’s Court of Kings county, showing that all of- the testator’s estate was then well invested, and that the net income amounted to about $2,800 a year, and they prayed that an order shoukb be made authorizing them to apply the sum of $1,050 annually, .to be used for the support, education and maintenance of the testatoijs infant child, said sum to be paid in four equal quarterly payments to the ' mother. Upon this petition, the surrogate, on October 20, 1896, made the desired order authorizing the general guardians (to apply the sum of $1,050 from the income of the infant’s estate, or so much thereof as in their judgment might be necessary for the support and education of said infant in each and every year during her minority, or until the further order of the court.

In February, 1897, the widow married Charles H. MacDonald, and in August of that year she presented a petition to the Surrogate’s Court alleging in substance that she had not received all the money that she was entitled to receive from the trustees under the order of October 20, 1896, and asking that said order be vacated and an order entered in lieu thereof “directing said Abbot and Cummings to forthwith pay over to your petitioner the accumulated income belonging to said infant, and directing said Abbot and Cummings to hereafter apply, in strict conformity with the terms of said will, one-half of the net income of the entire estate, as therein provided, for ‘the support, maintenance and education of said child.’ ” The trustees interposed an answer to this petition, and a hearing was had before the surrogate which has resulted in an order denying the appellant’s application for all the income of one-half of the estate held in trust for the benefit of the infant, but directing the trustees to pay .her $900 a year for the support, education and maintenance of the child in equal quarterly payments, and also to pay her $705.91, being a balance due for expenditures heretofore made by her on account of the infant. Upon this appeal the contention of the mother is: (1) That she was entitled to the whole income under the terms of her husband’s will; (2) that even if the surrogate had power to limit the amount which should be paid to her as guardian of the infant, he ought to have allowed her more than $900 a year, and (3) that the surrogate had no authority to award costs out of the estate to the respondents, as he did in the order appbhled from.

Section 2804 of the Code of Civil Procedure provides that where a person is entitled by the terms of a will to the payment of money 'by a testamentary trustee, he may-present to the Surrogate’s Court a verified petition, setting forth the facts which entitle him to the payment, and praying fo.r a decree directing such payment accordingly. The petition of the appellant is to be regarded as having been presented and considered by the surrogate under the provisions of this section. Her position as asserted in that petition virtually was that she was entitled, as it accrued in the hands of the trustees, to all the income of the one-half of her husband’s estate which they held for the benefit of her child. The assertion of this claim on her part made it incumbent upon the surrogate to determine whether in fact she was so entitled to receive the whole income, and¡ to decide that question it became necessary for him to construe her husband’ will.

Does that will, as the appellant contends, positively require the trustees to apply the whole income of that portion of the estate which they hold for the benefit of the child to'the support, maintenance and education of the infant as fast as that income reaches their hands ?

A construction which gives an affirmative answer to this question is certainly to ■ be avoided if possible in the interest of the infant. It would clearly be most unfortunate if the trustees were compelled to spend the entire income of $1,400 a year for the beneficiary when she was only enc year old, and yet have no • larger sum to apply to her use when she became twenty. Such a result is readily avoided by attributing to the testator an intention to : have the income applied in such a way as best to supply the wants of his child for the time being, or, in other words," to have the disbursements made in such a way as to meet her growing needs as she grows older. There is nothing in the language of the will opposed to this view. The testator does not direct that the incomp shall be paid annually or as it accrues, and the requirements of the will will be complied with if all the income is paid out for the support, maintenance and education of the child by the time she attains her ’majority. |

In McKnight's Executors v. Walsh (24 N. J. Eq. 498), a well-considered case in the Hew Jersey Court of Errors and Appeals',, the will under consideration directed the executor to hold $25,000 during the minority of any child or children of the testator’s daughter, appropriating and expending the legal interest arising and accruing from said sum "of money towards the proper maintehance and education of such child or children, and to pay said principal sum to said child or children on their attaining said age of twenty-one years.” The testator’s daughter left only one child, who was an infant" but seven days old at the time of her death. The trustee, however, paid over the entire income of $25,000 to the father of the infant as guardian for nurture. The court held that a correct construction of the will did not authorize this payment; that the discretion of the trustee was limited to the amount proper for the maintenance of the child, and that he had no right to expend a sum that was unreasonable and excessive, inasmuch as such an expenditure would constitute a misappropriation of the income.

The appellant here seeks to distinguish tills Hew Jersey case from the case at bar on the ground that there the payment authorized by the trustee was such as should be sufficient for the proper maintenance and education of the infant,, while here there is no limitation of the expenditure by the trustees to a proper amount. It seems to me, however, that in construing a provision like this for the support of an infant child, which may be operative over a period of twenty years, the limitation which was expressed in the Hew Jersey case should be implied, and that when a man directs the application of income to the support., maintenance and education of his child or children, he means the proper support, maintenance and education, haying reference to their condition in life, their wants and the amount of the principal sum from which the income is derived. The appellant cites Freeman, v. Coit (27 Hun, 447; affd., 96 N. Y. 63) in support of the proposition that the direction to apply the income for the benefit of the infant should be deemed a command to apply it all. A careful reading of the opinion, however, shows that the decision does not go as far as this. The court say that the direction of the testatrix was positive that the income of two-thirds of her estate should be devoted to the support, maintenance and education of the child, and under this decided and unequivocal direction her father, as executor, was clearly authorized to make that disposition of the income of this portion of the estate, so far as it was required for this purpose.” (P. 449.) The last clause which we have quoted is in harmony with the view already expressed, that proper support, maintenance and education are intended, even where the word proper or its equivalent is not used in the will. Hor is the Matter of Smith’s Estate (12 N. Y. Supp. 415) an authority in favOr of the appellant, for there it is expressly stated by Mr. Justice Coblett that it was manifestly the intention of the testator that the whole of the income should be used for the support of his daughter and her family as the income accrued ; and, furthermore, that there was no claim that she did not need the whole of the income for her .support.

Upon the facts, I think the surrogate exercised his discretion wisely in holding that $900 a year is a sufficient sum to supply all the present wants of the infant. ; '

In regard to the question of costs, the surrogate did not exceed the powers conferred’ upon him by section 2561 of the Code of Civil Procedure. This must be regarded as a special proceeding, the determination of which is embodied in a final order Or decree. (Code Civ. Proc. § 2550.) In such a case, where there lias been a contest, the surrogate may allow seventy dollars in addition to disbursements.' The trustees were successful parties to the proceeding, in so far as they prevented the appellant from obtaining a direction that they should apply the whole income to the "support oi the infant. The surrogate was, therefore, authorized to allow them their costs. ■

I think the order appealed from should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  