In re the Construction of the Will of Downey

Appeal from a decree of the Surrogate’s Court of Chenango County construing the provisions of a trust clause contained in the last will and testament of Timothy Downey, deceased. The trust clause provided: “ it is my express wish, however, in this regard that the said Anna Downey shall have the right to invade the principal of said trust for such sums and in such amount, as may be necessary, for the proper support and maintenance of the said Anna Downey, both in sickness and in health.” (Italics supplied.) The issue is whether appellant, as beneficiary, had the absolute right to invade the principal of the trust fund for her support and maintenance. The Surrogate held that she did not have such right, and that her income and resources were presently adequate for her support. We find no persuasive ground for reversal (Matter of Martin, 269 N. Y. 305; Matter of Hogeboom, 219 App. Div. 131). Decree unanimously affirmed, without costs, but with disbursements to each party filing briefs, payable out of the estate. Present — Foster, P. J., Brewster, Deyo, Bergan and Coon, JJ.