Opinion
July, 1898.
James Nixon, for petitioner.
C.J.G. Hall, for executors.
The respondents, who are testamentary trustees, are directed by the will of the decedent to apply the income of the trust estate created for the benefit of the minor, Philip Scherrer, or so much of the principal as they may consider proper, to the support, maintenance and education of such infant during his minority. They have now in their hands a considerable sum derived from such income, but, although requested, have not made any application thereof to the infant's benefit. No order can be made transferring such income to the general guardian of the infant for application by her, as that duty devolves upon the trustees; but, under the provisions of sections 2804-2805 of the Code of Civil Procedure, I think a direction can and should be made, under the circumstances of this case, for the application from the income by the trustees to the support, maintenance and education of the minor, to the extent of $10 per week, dating from May 28, 1898, until the further order of the court. The application of the guardian to be reimbursed by the trustees for past maintenance of the infant cannot be granted in this proceeding. There are cases, like Matter of Kerwin, 59 Hun, 589, and Matter of Haslehurst, 4 Misc. 366, in which it was held that general guardians could be compelled by the surrogate to make compensation to parties for past maintenance of the ward, but the decisions therein were based upon the provisions of section 2746 of the Code of Civil Procedure, which has no application to the present proceeding, which is brought against testamentary trustees. I know of no authority which authorizes me to direct the respondents to make such payment. An order in accordance herewith may be submitted on notice of settlement.
Decreed accordingly.