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In the Matter of the Judicial Settlement of the Intermediate Account of Proceedings of Franklin J. Myers and Barton V. Hilliard, as Trustees of the Several Trusts Created under the Last Will and Testament of Eleanor L. Hilliard, Miles F. McDonald, as Special Guardian for John Gerald Hilliard Boate, Jr., Charles Ellison Hillyer, Kenneth Swimm Hillyer, Eleanor Mills Hillyer, Robert Clinton King and Martha Lavinia Kino, Infants, etc., Appellant Franklin J. Myers and Barton V. Hilliard, as Trustees under the Last Will and Testmanent of Eleanor L. Hilliard, and Barton V. Hilliard and Franklin J. Myers, Individually, Eleanor Swimm Hillyer, Charles T. Swimm, Phœbe Mills Swimm, Geraldine Swimm King and John H. G. Boate
Proceeding instituted in the Surrogate’s Court of Kings county for the judicial settlement of the account of proceedings of the trustees of the several trusts under the last will and testament of the decedent.
As an incident to such accounting, the surrogate construed the second clause of the will creating such several trusts to the effect that the life beneficiaries thereof were to receive all of the current income thereof without diminution for the purpose of establishing an amortization or sinking fund to maintain the principal of the trust, and that, therefore, the dividends received by the trustees upon the stock of the Underwriters Building Company, constituting the corpus of the several trust funds, which stock was specifically bequeathed to the trustees, were to be paid to the life beneficiaries of said trust in spite of the fact that the same would constitute an impairment of the value of the trust corpus as that value existed at the date of decedent’s death.
A decree thus construing the will and settling the account of proceedings was entered. From that decree the special guardian of certain infants, remaindermen, appeals. Decree unanimously affirmed, with costs to the respondents jointly and to the special guardian-appellant, payable from the estate.
(Matter of James, 146 N. Y. 78; McLouth v. Hunt, 154 id. 179; Matter of Chapman, 32 Mise. 187, 191; affd., 59 App. Div. 624; affd., 167 N. Y. 619; and vide Matter of Fanoni, 88 Mise. 442, 450; affd., 169 App. Div. 958; affd., 216 N. Y. 640; Robertson v. De Brulatour, 188 id. 301, 315; Matter of Guaranty Trust Co., 131 App. Div. 658; Matter of Stevens, 187 N. Y. 471; Frankel v. Farmers’ Loan & Trust Co., 152 App. Div. 58, and Matter of Hilliard, 164 Mise. 677.) Present — Lazansky, P. J., Carswell, Davis, Johnston and Taylor, JJ.