Legal Opinion

Tompkins v. Moseman

New York Surrogate's Court

Decided June 15, 1881PublishedCited by 9 opinions

Petitioet for the appointment of. a successor to a deceased testamentary trustee. The will of Wright Horton was admitted to probate in Westchester county, in 1861. By its provisions, he bequeathed certain general legacies, after the payment of which, and of his debts, he gave the rest and residue of his estate to his children in certain shares. To his daughter, Martha Ann Tompkins, he gave, besides a legacy of $50, one-half of one-eighth of said residue.

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Petitioet for the appointment of. a successor to a deceased testamentary trustee. The will of Wright Horton was admitted to probate in Westchester county, in 1861. By its provisions, he bequeathed certain general legacies, after the payment of which, and of his debts, he gave the rest and residue of his estate to his children in certain shares. To his daughter, Martha Ann Tompkins, he gave, besides a legacy of $50, one-half of one-eighth of said residue. By a codicil, he revoked this provision and gave the same to his son, Frost Horton, in trust, to invest and pay the income to her for life,…

1Opinion of the Court

The Surrogate.

It is provided by section 2818 of the Code of Civil Procedure that “where a sole testamentary trustee dies, or becomes a lunatic, or is, by a decree of the Surrogate’s court removed or allowed to resign, and the trust has not been fully executed, the same court may appoint his successor; unless such an appoin tment would contravene the express terms of the will. Where a decree, removing the trustee, or discharging him upon his resignation, does not designate his successor ; or the person designated therein does not qualify ; the successor must be appointed and must qualify, as *404pr…

2Cases cited1 opinion

  1. The People v. . NortonNew York Court of Appeals · 1853

3Cited by9 opinions

  1. Freeman v. PrendergastSupreme Court of Georgia · 1894
  2. Hoes v. HalseyNew York Surrogate's Court · 1883
  3. Guion v. UnderhillNew York Surrogate's Court · 1882
  4. In re DelaplaineNew York Surrogate's Court · 1887
  5. In re Estate of GilbertNew York Surrogate's Court · 1886

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