Opinion
October 17, 1960
Kiernan Mulcahy ( Robert L. Welch of counsel), for Marian G. McFadden, as executrix, petitioner.
Davis Polk Wardwell Sunderland Kiendl ( Joseph A. Bambury and Ernest S. Ballard, Jr., of counsel), for Morgan Guaranty Trust Company of New York, respondent.
In this accounting proceeding the answer interposed by the corporate trustee raises a question as to the following language in decedent's will: "Profits resulting from the sale of items, part of the Trust Fund, shall be treated as income, whereas losses resulting from the sale of such items shall be treated as capital losses, and shall be deducted from the principal of the Trust Fund."
A reading of the entire will indicates that the testamentary plan was to benefit the life beneficiaries, by treating profits resulting from sales as income. The specific words "part of the Trust Fund" as here used clearly indicate that it was the testatrix' intent that said profits be computed at the trustee's responsibility value after the trust is funded. The application for letters of trusteeship is granted.
Submit decree settling the account and construing the will accordingly.