#### Matter of the Final Settlement of the Accounts of Frederick W. Barker, as Trustee of Alonzo C. Yates, Deceased.

(Supreme Court, Onondaga Special Term,

May, 1899.)

Trusts — Advances ,for expenses of the illness and burial of the bene» ficiary should not be paid out of realty.

A person created a trust to pay his creditors first and then to pay the income to himself for life, and further directed that the remaining principal should pass at his death to his wife and to his mother in equal shares. At his death ithe trust fund represented real estate, there was some accrued income of the trust, and also some unadministered personal property.

*396Held, *that*advances which, his mother, had made for his sickness, death and burial should be paid out of the accrued income, and out of the personal property, before the principal of the' trust could • be - . • used in repayment. ■

The only question raised upon the accounting of Mr. Barker, as trustee, is as to the application of certain .moneys, still in his hands. A contest arises here between Sarah A. Yates, the mother of Alonzo 0. Yates, and Leila M. Yates, his wife, as-to whether ■ the moneys so on hand shall be. applied to the reimbursement of the mother for certain expensés • incurred in connection with the death and burial of-Alonzo. 0. Yates.

C. W. Andrews, for Sarah A. Yates.

Alexander D. "Jénney, for'Leila M. Yates. . ;

Hiscock, J.

Mr. Barker was appointed .trustee, under a trust. deed executed by Alonzo 0. Yates and Leila M.. Yates, his wife.. Under the trust deed he was to apply the income, and, if.neces-' sary,' any part of the principal of the estate conveyed to him to ■the payment of certain indebtedness existing- against said Alonzo •at the time of the conveyance. He was to invest the balance and pay the income to Alonzo 0., during his lifetime. Upon the- death of said Alonzo 0., he was to pay the principal of such estáte, in case of no issue surviving him, one-half to the wife, and one-half to the mother. '

■ At the time he died the trustée had in his possession $4,933.18, . of which $254.69 was income of the trust property, and the balance . was derived from the sale of certain real estate conveyed to him under the trust deed. ' In addition to this the deceased left a personal estate, amounting to at least $1,000',. .of which no adniinis- • trator has been appointed. The mother -and her son-in-law -made disbursements, claimed to amount to between $1,600.and $1,700, in connection with the sickness, death and burial of her son. She x seeks to have these expenses reimbursed to her out of the funds in question, and the wife opposes it. •

The mother who proposes to accept the benefits, of the pro-, visions made in the trust- deed in her behalf, with-reference to the. . disposition of the principal remaining on hand at. the death of her son, is certainly in no position to dispute its validity. Under *397the terms of the deed, and all of the surrounding facts, as presented to me by the stipulation of the parties, I think that the income in the hands of the trustee, subject to his proper claims, is applicable to the payment of the expenses in question, but that the balance* of the fund which stands in the place of the real estate which produced it is hot applicable to the payment of such expenses, at least until the personal estate of the deceased has been exhausted in the payment of those funeral expenses and charges which are proper. If any question arises as to the propriety of any of those charges it can be settled hereafter.

Ordered accordingly.