Opinion
March, 1904.
Nash Rockwood, for the appellant.
W.A. Pierson and Charles S. Lester, for the respondent.
The express trust created by the will of Sarah J. Davis did not terminate upon the death of the trustee. It then vested in the Supreme Court to be exercised through its appointee, or the administrator with the will annexed, the substituted trustee. ( Matter of Valentine, 3 Dem. 563; Matter of Hecht, 71 Hun, 63.) After the death of Crane, therefore, this substituted trustee was required to pay the income of the said fund yearly to the plaintiff, and so much of the principal as the court, in its discretion, should say was proper and necessary for his support. This discretion of the court, however, is not an arbitrary discretion and can only be exercised upon evidence showing the circumstances and necessities of the cestui que trust. Upon the trial of this action there was no evidence whatever upon which could be based a finding that the plaintiff was in need of any more than the income of the trust fund, and the direction of the court, therefore, to pay over the principal thereof as well as the income was clearly unauthorized.
The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant in this court and the court below to be paid out of the estate of Sarah J. Davis.
All concurred; PARKER, P.J., in result; HOUGHTON, J., not sitting.
Judgment reversed and new trial granted, with costs to appellant in this court and in the court below to be paid out of the estate of Sarah J. Davis, deceased.