In re the Application under the Last Will of Kaufman

Schulz, S. The will of the decedent contains a provision which, so far as it is material to the question under consideration, is as follows: “ I give, bequeath and devise all my estate, real, personal and mixed * * * unto my trustee hereinafter named to invest the same and keep the same invested until my son Abraham Kaufman attains the age of twenty-one years; to pay out of tbe net income thereof the sum of fifteen dollars per week to my wife, Ida Kaufman, for her support and the support and education [203] of my son Abraham Kaufman; and upon my son Abraham attaining the age of twenty-one years, I direct my trustee to pay the principal of said trust fund and accumulated income to my son Abraham Kaufman for his use and behoof forever.” The widow of the decedent, Ida Kaufman, now applies to this court, as she states under section 17 of the Personal Property Law, section 62 of the Beal Property Law and section 2664 of the Code of Civil Procedure for an order permitting the trustee to pay out of the decedent’s estate a sum in excess of the amount allowed to her and the infant by the trust created for their support and the education of the infant and prays that such payment be made out of the income of the trust fund, and if the same be not sufficient then out of the principal. Section 17 of the Personal Property' Law (being Laws of 1909, chapter 45, and constituting chapter 41 of the Consolidated Laws) provides that when a minor for whose benefit a valid accumulation of the income of personal property has been directed, shall be destitute of other sufficient means of support or education, if such accumulations shall have been directed by a will, the Surrogate’s Court of the county in which such will shall have been admitted to probate, may, on the application of such minor or his guardian, cause a suitable sum to be taken from the moneys accumulated or directed to be accumulated to be applied for the support or education of such minor. Section 62 of the Beal Property Law (being Laws of 1909, chapter 52, and constituting chapter 50 of the Consolidated Laws) provides for similar relief out of the' rents and profits of real estate upon the application of the general or testamentary guardian of the infant. The petition fails to disclose any accumulations of income of per [204] sonal property or of rents or profits from real property and the application is not made by the infant nor by his general or testamentary guardian. Section 2664 of the Code of Civil Procedure provides that the surrogate may make an order directing the application by the guardian of an infant’s property to the support and education of the infant, of such a sum as to the surrogate seems proper out of the income of the infant’s property,- or where the income is inadequate for that purpose out of the principal. In the pending matter there appears to be no guardian of the infant’s property, and if there were he would not have possession of the principal of the trust fund out of which the payments are desired because that fund is in the hands of the trustee named in the will. For the reasons above stated, no order can be made by me under the statutes quoted for payment out of accumulated income. In so far as the application is for payment out of the principal of the trust fund, I have carefully examined the cases cited in the memorandum submitted upon the application but do not find that the matters there referred to were brought in the Surrogate’s Court or originally determined by a surrogate; nor can I find a single case where the Surrogate’s Court has directed the application of the principal of a trust fund in a manner different from that prescribed in the will creating the trust or holding that the court has sufficient equitable powers to make such a direction. The authorities on the subject seem rather to indicate a contrary opinion. Matter of Van Decar, 49 Misc. Rep. 39; Smith v. Bixby, 5 Redf. 196; Matter of Kohler, 96 Misc. Rep. 433, 441; Matter of Friedlander, 189 App. Div. 90, 95; Mills v. Michigan Trust Co., 124 Mich. 244; 82 N. W. Rep. 1046. [205] The application for payment out of the principal of the trust fund involves an appeal to the equitable powers of the Surrogate’s Court (Matter of Howland, 37 Misc. Rep. 114; revd., on another point, 75 App. Div. 207), and in my opinion the latter has not been invested with equitable jurisdiction broad enough to grant the relief desired. Code Civ. Pro. § 2510; Matter of Holzworth, 166 App. Div. 150; affd., 215 N. Y. 700. The application should be made to the Supreme Court about whose equitable powers and jurisdiction there is no question. Beardsley v. Hotchkiss, 96 N. Y. 201, 219; Matter of Bostwick, 4 Johns. Ch. 99; Matter of Kane, 2 Barb. Ch. 375; Matter of Muller, 29 Hun, 418. While the facts set forth in the petition show that a hardship exists which I would be inclined to relieve, I am of the opinion that I lack the power to do so. For the reasons stated, the application must be denied. . Application denied.