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Harry S. Beard, as Committee of the Estate of William H. Beard, an Incompetent v. Tristram W. Metcalfe, etc., of Fortescue O. Metcalfe
We are of opinion that the incompetent’s money constituted a trust fund in the hands of the testator in his lifetime and his executor is legally obligated to account therefor. The plaintiff’s claim is entitled to preference over ordinary creditors (Matter of Menahan, 224 App. Div. 139, 143) and the discretion of the learned Special Term in denying to plaintiff the protection of an injunction pending the action was improperly exercised.
The order is, therefore, reversed upon the law and the facts, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, payable out of the estate. Lazansky, P. J., Rich, Kapper, Hagarty and Seudder, JJ., concur.