Opinion
Argued January 12, 1955
Decided March 3, 1955
Appeal from the Supreme Court, Appellate Division, Third Department, VOSBURGH, S.
Lydon F. Maider and Herbert W. Patterson for appellants.
Walter J. Hogan for Gertrude K. Hayward and others, respondents. Alfred D. Dennison for Peoples Bank of Johnstown, respondent.
Under the second decretal paragraph of the modified decree inserted in accordance with the opinion of the Appellate Division, the provision of the original surrogate's decree for the immediate payment of $8,082.81 to John Wells, as trustee under the will of Alida Wells for his life, has been stricken and direction made that said sum be held by the trustee under the will of David Wells to pay over the income to David Wells' beneficiaries until the death of John Wells, at which time the principal will be payable to the remaindermen-appellants herein. It should be noted that the decree in this respect recognizes that that sum is a charge against the estate of David Wells since the consents were ineffective to bar the remaindermen's right under the will of Alida Wells. Nevertheless since the consent has been held valid as against the interest of John Wells as income beneficiary under the will of Alida Wells, the Appellate Division has selected the above procedure to provide for the ultimate payment to the remaindermen while providing that the income be paid to David Wells' beneficiaries during the life of John Wells. But since John Wells is the successor trustee under the will of Alida Wells and since the sum of $8,082.81 is part of the corpus of the trust under the will of Alida Wells, that sum should properly be administered by John Wells, as trustee under the will of Alida Wells, rather than by the State Bank of Albany as successor to the Peoples Bank of Johnstown, New York, trustee under the will of David Wells. The order should therefore be modified so as to provide for the immediate payment of the above sum to John Wells, as trustee under the will of Alida Wells, but with directions to pay over the income during his life to the trustee under the will of David Wells for proper distribution to David Wells' beneficiaries. Only in this manner will the rights of the remaindermen, whose interest in the sum is superior to that of the beneficiaries under the will of David Wells, be fully protected.
The order of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the estate.
CONWAY, Ch. J., DESMOND, DYE, FULD, FROESSEL and VAN VOORHIS, JJ., concur.
Ordered accordingly.