#### JOSEPH M. PRAY and RICHARD INGRAHAM, as Executor, etc., of JOHN DIKEMAN, Deceased, Appellants, *v.*JOSEPH HEGEMAN, as Executor and Trustee, etc., of AIISTIN D. MOORE, Deceased, and Others, Respondents.

*Trust*— direction *for accumulation of income during minority of henejma/ry*— the■ *amumnt accumulated may he added to the principal on Ms a/rriml at majority.*

Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court, without a jury.

This action was originally brought in the lifetime of John Dike-man and Austin D. Moore, Jr., by John Dikeman, as plaintiff,, against Austin D. Móore, Jr., and Joseph Hegeman, as executor and trustee of and under the will of Austin D. Moore, Sr. It was-in the nature of a creditor’s action to reach a certain fund in the-hands of defendant Hegeman, as such executor and trustee, amounting to upwards of $27,000, claimed by the plaintiff to belong to-Austin D. Moore, Jr., and apply it to the payment of certain judgments in favor of the plaintiff against said Austin D. Moore, Jr., amounting to about $7,000, on which the remedy at law had been exhausted.

The fund sought to be reached consisted of accumulations of income, rents and profits, made by said Hegeman, as such executor and trustee, during the minority of Austin D. Moore, Jr., pursuant to the directions contained in the will of Austin D. Moore, Sr., upon the share of the testator’s estate held in trust for said Austin D. Moore, Jr.

The main question in the case was whether the said accumulations belonged to the judgment debtor, Austin D. Moore, Jr.; that question depending upon whether the direction for the accunmlation in the will was void.

The testator, after providing for the creation of trusts foi such of his children as might survive him, and the payment to them of specified sums during their minority out of the income of the estate, directed: “And the balance of such income shall, from time to time, be added to the share or sub-share from which the same proceeded, and accumulated as principal until he or she arrives *604at the age of twenty-one years, after which period the whole of such income shall be paid over, quarter-yearly, to such child.”

The court at General Term said : “ The question involved in this case was decided in *Meseróle*v. *Meseróle*(1 Hun, 66). By section 37 of chapter 1, part 2, title 2, Revised Statutes, accumulations are permitted for the benefit of minors in being at the creation of the trust, and terminating at the expiration of their minority. In *Meseróle*v. *Meseróle {supra),*the direction was to add the accumulation to the principal, and thereby to make one fund, at the expiration of the minority. The General Term of the First Department held this a valid direction, as being for the benefit of the infant.

“ The true construction of the will of Austin D. Moore, deceased, requires a new principal to be made up of the original share of Austin D. Moore, Jr., and of the accumulation accruing during his minority, ‘and the balance of such income shall, from time to time, be added to the share or sub-share from which the same proceeded, and accumulated as principal until he or she arrives at the age of twenty-one years.’ The subsequent words, giving the ‘ whole of such income,’ were intended to mean the income upon the new principal made up by the addition directed by the will to the original share.”

The judgment should be affirmed, with costs.

*J. T. Ma/rean,*for the appellants.

*Smith dé Woodwa/rd,*for Hegeman, respondent.

*Coudert Bros.,*for Holden, guardian *ad litem,*respondent.

*H. M. Whitehead,*for G. M. Lyon, respondent.

*JD. B. Thompson,*for Sarah M. P. Moore, respondent.

*Traey, GatUn <& Hudson,*for John Hudson, guardian *ad litem.*

Opinion by

Barnard, P. J.;

Dykman, J., concurred; Cullen, J., dissenting.

Judgment affirmed, with costs.