Surrogate's Court, Kings County, March, 1913. [Vol. 80.

The words "in such sums from time to time as in the judgment of the executors may seem best," so far as they might operate to invest the executors with a discretion to postpone payment, are too indefinite to yield any practical meaning.

PROCEEDING upon the judicial settlement of the account of executors.

John T. Bladen, for executors.

William J. Mahon, Special Guardian for Annie Dorothy Taylor, an infant.

Joseph A. Keenan, Special Guardian for Emily Guttridge, incompetent.

KETCHAM, S. Construction is required of the following:

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First. After all my lawful debts are paid and discharged I give and bequeath unto William Marshall my late wife's son, Two thousand ($2000) Dollars One thousand dollars in Cash, and one thousand dollars due on a certain Mortgage, executed to me by Francis M. Witt, bearing date May 1, 1873."

This gift is primarily of $2,000 in words which, standing alone, would constitute a general legacy. The mere devotion of a designated portion of the decedent's estate to the payment of the legacy in part only makes the legacy pro tanto demonstrative. Giddings v. Seward, 16 N. Y. 365.

That being its character, it is payable from the demonstrated source, if available, and otherwise, from the general estate.

Again, words constituting a general gift must prevail unless subsequent language, at least equally expressive, imposes a specific character upon the gift. Roseboom v. Roseboom, 81 N. Y. 356; Hacker v. Hacker, 153 App. Dív. 270, and cases cited.

Misc.]

Surrogate's Court, Kings County, March, 1913.

But in the sixth paragraph the mortgage is made applicable to the discharge of each of the many legacies contained in the will, in the event that abatement shall become necessary. The mortgage cannot be merged in the general assets and be also the subject of a specific gift.

The third paragraph contains a trust for several beneficiaries successively, and finally, in the event of the death of the beneficiary last named, it provides as follows: "But in the event of her death, I desire that the remainder of the trust fund be paid to the husband and children of my sister, Maria Tayler, in such sums from time to time, as in the judgment of the executors may seem best."

All the beneficiaries of the trust having died before the testator, except certain children of Maria Tayler, the sister, the trust for such children is accelerated and the provision is to be construed as if it were merely a direction that the trust fund should be paid to such children. This, then, would be a dry trust, and the children of the sister, when ascertained, would become legatees of the fund in the same manner as if it were directly given to them.

The sister having died between the making of the will and the death of the testator, and several of her children having died in the same period, the two children who survived such period become the only remaining beneficiaries. The only gift to any of the sister's children was contained in a direction for payment in the event of the sister's death. This was future, and not vested. It was a provision for a class and inures only to the benefit of those who are revealed as members of the class at the time when the payment is to be made.

The legacy must be immediately payable to these children, despite the qualification that it is to be paid

Surrogate's Court, New York County, March, 1913. [Vol. 80. "in such sums from time to time as in the judgment of the executors may seem best." These words, so far as they might operate to invest the executors with a discretion to postpone the payment, are too indefinite to yield any practical meaning. They must receive such construction as will maintain the validity of the provision, rather than a construction which would destroy it. A direction that a legacy should be paid by executors only when they should in their discretion choose to pay it would at least be of doubtful validity. It may be saved by the interpretation that the only discretion vested in the executors is such as will accord with the law and that the fund is payable at once.

Let a decree be submitted in accordance with these views.

Decreed accordingly.

Matter of HENRY C. BROWN, Petitioner.

(Surrogate's Court, New York County, March, 1913.)

Guardian and ward - application by father of infants for annual allowance for support and maintenance - - allegation in petition that petitioner is unable to maintain infants—application by guardian for reimbursement for past maintenance.

Upon an application by the father of two infants, as guardian, for an annual allowance for their support and maintenance, the court must take into consideration the circumstances of the father, and his petition must allege that he is unable to maintain said children.

Upon such an application the court must also take into consideration the amount of the infants' fortune, and where it appears that the yearly income there from is $24,000 and that the infants are two girls aged, respectively, three and eight years, an order will be granted requiring the trustee to apply $5,000 for the maintenance of each, and the guardian's application for reimbursement for past maintenance will be denied.

Misc.] Surrogate's Court, New York County, March, 1913.

PETITION by guardian for an allowance for support and maintenance of two female wards.

Lord, Day & Lord, for petitioner.

Bowers & Sands appear formally for executor, and neither oppose nor consent to application.

FOWLER, S. This matter comes on for hearing on a petition of the guardian for an annual allowance of $18,000 for the future support and maintenance of two infant females, and also for an allowance of $27,724.68 for their past maintenance, all to be paid out of the income of the infants' estate. It is unnecessary to say that the general rule is that the entire cost of maintenance of well-to-do infants shall not exceed the sum total of the interest on capital. This application I understand does not involve a resort to principal.

The application for an allowance out of the estate of an infant is always very serious. In legal theory, the chancellor, or the court substituted for the chancellor, in this instance the surrogate, is the guardian of incompetents. Formerly a warrant to that effect passed with the chancellor's seal of office. The relative commissioned as guardian is only the guardian designate, or official of the court, and if the court expressly sanction improvidence or waste of the infant's estate, it is not only error," but a wrong to the child done by the court. Thus it is that these applications require our serious consideration at all times. The surrogate's present jurisdiction of this matter flows from section 2804, Code of Civil Procedure.

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I am asked in this matter to allow out of the income coming into the hands of their guardian $18,000 per annum for the support and maintenance of an infant under seven and a minor over seven years of age.

Surrogate's Court, New York County, March, 1913. [Vol. 80. Although the law distinguishes an infant from a minor (Rex v. Delaval, 3 Burr. 1434, 1436), they may be regarded in this matter as either infants or minors. The children are respectively three and eight years. It is stated in the petition that the best interests of these very young girls demand that an allowance should be made which will permit their maintenance “in a manner in keeping with their position and prospects." I confess that I do not quite understand the present meaning of the allegation concerning the "position" of these infants. There is some authority in old books for the allegation concerning the "position" of infants, as the position of infant heirs was then to be taken into account in fixing their allowance. Harvey v. Harvey, 2 P. Wms. 22; Eversley, Dom. Rel. 637. In times past and in a country where the higher gradations of rank involve profound and exacting obligations of duty, rank or "position," which I take to be synonymous in law, may well have been taken into consideration by the chancellor in fixing allowances. In this country, where rank is not recognized, the more usual averment at the present day is that the "situation and the fortune " of the infants are such as to be taken into account in fixing the allowance for the support, education and maintenance of such infants. The former great and necessary obligations of a legally recognized "position" are with us, I fear, in cases other than this, too often confounded with mere luxury, or habitual and trifling display. In the interests of infants, committed to the care of this court, I am tempted to offer tentatively some observations, taken from the precedents, on certain features of the education and maintenance of infants, which I think may, with more accuracy, be taken into account by the surrogate in fixing future allowances for the support, maintenance and education of wealthy infant wards of court.