Opinion
November 26, 1951.
Present — Nolan, P.J., Carswell, Adel, Sneed and Wenzel, JJ.
Cross appeals from a decree construing a will. Appellants Lake appeal from so much of the decree as adjudges an adopted daughter not to be entitled to take income of a trust fund as "lawful issue or descendant" of a named beneficiary. The trustees appeal from so much of the decree as directs allowances to be paid out of the principal of all the trusts created in paragraph Seventh (B) of the will. Decree modified on the law by striking out of the second ordering paragraph the words "and that said Alice Elizabeth Childs Lake is not a beneficiary of the trust created under paragraph Seventh (B) of the Last Will and Testament of decedent for the benefit of said Alice S. Childs", and by striking out of the next to last ordering paragraph the words "the principal" as used to include corpus in the distribution to the remaining subsidiary trusts. The decree is also modified on the facts by striking out the provision for payment of costs and allowances out of the principal of all trusts created under paragraph Seventh (B) of the will and by providing in lieu thereof that such payments be made out of the corpus of the three-fiftieths share as to which Mrs. Alice Childs is named as beneficiary. As so modified, the decree is unanimously affirmed, with costs to all parties filing briefs, payable out of the corpus of the Alice Childs trust. The case of Matter of Horn ( 256 N.Y. 294) is to be distinguished generally on its facts. Moreover, it is to be particularly noted inter alia there was not there, as here, an alternate method of distribution. ( Matter of Horn, 231 App. Div. 747; Matter of Charles, 200 Misc. 452.) The provisions of the decree construing the language of the will in paragraph Seventh (B) dividing corpus, and directing distribution in accordance with that construction are struck out because this proceeding was exclusively concerned with the income provision of paragraph Seventh (C) of the will. It was an improvident exercise of discretion to charge corpus of trusts, other than the one affected, with the payment of costs and allowances.