In Re the Accounting of Wilkin
New York Court of Appeals
Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 1, 1904, which affirmed a decree of the Monroe County Surrogate’s Court surcharging the account of the trustee herein upon a proceeding for a judicial settlement ' thereof.
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Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 1, 1904, which affirmed a decree of the Monroe County Surrogate’s Court surcharging the account of the trustee herein upon a proceeding for a judicial settlement ' thereof. James Cunningham, a resident of the city of Rochester, died on the 15th of May, 1886, leaving several children, a large estate and a last will and testament, by which, after providing for his other children, he made the following provision for his son Charles: ' “Ninth. I give, devise and bequeath unto…
1Opinion of the CourtVann, J.
As we read the ninth clause of the will, the first sentence creates a trust and the second a power in trust. Since the trust covers personal property only, it is. not so restricted as a trust of real estate, for it may embrace “ any purpose not unlawful, subject only to the law of perpetuity.” (Cochrane v. Schell, 140 N. Y. 516, 534; Gilman v. Reddington, 24 N. Y. 12; Gott v. Cook, 7 Paige, 521.) The trust has one purpose and the power another, and both involve the exercise of discretion by the trustee. The trust is to invest the sum in question and to pay it over, “ together with the…
2Cases cited3 opinions
- Cochrane v. . SchellNew York Court of Appeals · 1894
- Gilman v. . ReddingtonNew York Court of Appeals · 1861
- Gott v. CookNew York Court of Chancery · 1839
3Cited by21 opinions
- In Re the Accounting of First Trust & Deposit Co.New York Court of Appeals · 1939
- In re MeekerNew York Surrogate's Court · 1929
- In re the Construction of the Last Will & Testament of BriggsNew York Surrogate's Court · 1917
- In re WhiteNew York Surrogate's Court · 1929
- Stein v. Safe Deposit & Trust Co.Court of Appeals of Maryland · 1915
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