Opinion
June 30, 1943.
Appeals from an order in which the court exercised a personal election on behalf of an incompetent to invade the corpus of a trust fund to the extent of $5,000, which fund she created prior to the adjudication of her incompetency, and directed the committee of the estate of the incompetent to demand such sum from the trustees, residents of the State of Massachusetts, in which State the trust fund is located, and to take appropriate action in the event of their refusal to make such payment.
On appeal by appellant G. Ida Crawford, co-committee of the person of the incompetent and vested remainderman, order reversed on the facts, without costs, and the matter remitted to the Special Term for a new hearing and appropriate action thereon. Upon the facts in this record, before any further invasion of the principal of the trust is authorized a hearing should be held to determine the necessity of continuing the allowance to the incompetent's son as provided by the order made in 1933. It appears that the committee, individually, is an adult who is self supporting and, under the circumstances, that the incompetent, if sane, might not have depleted the trust fund — which she created — for his benefit. Upon remission and on further proof adduced, if any, the court, if satisfied that vacatur of the support order, rather than invasion of the trust fund, would effectuate the intention of the incompetent, if sane, may do so on its own motion, on behalf of its ward or, if so advised, in pursuance of its statutory and inherent powers, may appoint a special guardian to represent the interests of the incompetent in this proceeding. (Civ. Prac. Act, § 1380; Moore v. Flagg, 137 App. Div. 338, 346.) On appeal by the appellants constituting The Christian Science Trustees for Gifts and Endowments, order affirmed, without costs, without prejudice, however, to an application by them to open their default and, on the remission of this proceeding on the appeal of the co-appellant, to contest on the merits if so advised. These appellants appeared specially to question the power of the court to make the order appealed from in the absence of jurisdiction over their persons and over the trust fund. The making of the order was within the power of the tribunal, as it had jurisdiction over the person of the incompetent, a resident of this State, who, in turn, was afforded a personal election pursuant to the pertinent provision of the trust fund, which might be exercised by the court on her behalf. ( Matter of Flagler, 248 N.Y. 415; Sporza v. German Savings Bank, 192 N.Y. 8; Matter of Hills, 264 N.Y. 349, 353, 354; Matter of Brown, 212 App. Div. 677, affd. on opinion below, 240 N.Y. 646; Ganley v. Lincoln Savings Bank of Brooklyn, 257 App. Div. 509.) The trustees, so far as the record discloses, made no effort to contest on the merits and suffered a default in that respect. (Cf. Heilbrunn v. Kellogg, 253 App. Div. 753, affd. 279 N.Y. 773.) [See ante, p. 882.] Close, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur. [ 180 Misc. 361.]