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In the Matter of Emily Gross, as Trustee under the Last Will of Martin Escher, New York State Department of Mental Hygiene, Appellants Benedict Ginsberg, as Guardian ad Litem
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs.
It cannot be said that the trustee was required to invade the corpus of the trust to reimburse the Department of Mental Hygiene for costs incurred in caring for the life beneficiary. Both courts below found that testator’s intent, as expressed in the codicil establishing the trust in its current form, was that the corpus be invaded only for health-related emergencies and that routine expenses for care be paid out of the income. This was amply supported by the record. The trustee did not abuse her discretion as a matter of law.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.
Order affirmed, with costs, in a memorandum.