Cross v. Long Island Loan & Trust Co.

DYKMAN, J. This is an appeal from a judgment entered upon the findings of a judge after a trial at the special term. The action was brought to obtain a construction of the will of John A. Cross, deceased, and the question involved is whether the sum of $29,500, the sum received by the trust company for premiums on the sale of certain securities belonging to the estate of the testator, constitutes a “profit,” within the meaning of the word as it is employed by the testator, and therefore belongs to the life tenants, or whether it forms part of the corpus of the estate, and belongs to the remainder-men. The fund in question represents the increase in value of the securities, and is therefore not “profit,” in the ordinary acceptation of that term. It is an accretion or increase from natural causes. Profit is acquisition of gain above expenditures arising from some transaction or operation. Under this will there was to be no traffic or operations, but only an investment of the fund. A decision of the surrogate of New York that an enhancement of the value of United States.bonds held in trust went to the remainder-man, and not to the life tenant, was approved by the court of appeals in Re Gerry, 103 N. Y. 445, 9 N. E. 235, and that case seems also to be decisive of this. In re Clark, 62 Hun, 275, 17 N. Y. Supp. 93; Bergen v. Valentine, 63 How. Pr. 225; and Duclos v. Benner, 62 Hun, 428, 17 N. Y. Supp. 168,—are all authorities to the same effect. The judgment should therefore be affirmed, with costs.