#### William E. Bloodgood et al., Plaintiffs, *v.*Thomas Lewis et al., Defendants.

(Supreme Court, New York Special Term,

October, 1910.)

Trusts — The beneficiary, his estate, rights and interest — Eights of beneficiary of income.

Where a testator creates a trust for the benefit of his four children during life, dire'cting the income to be paid to them but providing in the case of his daughter Mary that the income be paid to another daughter, Eosetta, and by her applied to the care and comfort of Mary if, in Eosetta’s judgment, Mary should be of unsound mind or incapable of managing her affairs, during such period of unsoundness or incapacity; and where the testator by a codicil relieved Eosetta of the duty of exercising such judgment and left to his trustees to determine the fact of Mary’s unsoundness or incapacity, still providing, however, for the application by Eosetta to Mary’s support of so much of the income as the trustees in their discretion should pay over to her for the purpose, the right of Mary to the entire income from her share is not impaired; nor can the surplus not required by Mary for her comfortable support be paid after her death to those who would answer the description of persons presumptively entitled to the next eventual estate, where the trustees had considered her incapable up to the time of her death of the management of her affairs.

Actioh for construction of will and for accounting.

Henry H. Man, for plaintiffs.

Joseph H. Choate, Jr., for defendants John A. Lewis et al.

Frederick Wiener, for defendant Thomas Lewis.

George V. Brower, Charles H. Kelby and William P. Maloney, for defendant Kings County Trust Company.

*270Bischoff, J.

The single question presented concerns the disposal of income derived from a trust fund created by the testator, Thomas Lewis, for his daughter Mary, now deceased. By his will the testator directed that his residuary estate be held in trust, the income divided into four equal parts and paid to his four children, with the proviso, as to the share of Mary, that the income payable to her should be paid to her sister Rosetta, if, in the latter’s judgment, Mary should be of unsound mind or incapable of managing her own affairs, and, during the continuance of that condition, the income to be apjilied by Rosetta to the care and comfort of Mary “ during such period of unsoundness or incapacity.” In the event of the death of Rosetta during Mary’s lifetime, the will further provided that the remaining executors or trustees should apply the share of Mary to her support “ while she so continues incapacitated.” So far, there was undoubtedly a- gift to Mary of the income of this one-fourth share, the whole amount being payable to her sister, as custodian, in the event of Mary’s incapacity to manage her affairs. There is nothing to indicate that Rosetta’s possession was that of a trustee to accumulate the income for some indefinite purpose, nor is it to be assumed that the testator intended to direct an accumulation void in law. Mary was given her share of this income, simply with the proviso that, under certain conditions possibly of brief duration, Rosetta was to have the physical custody of the funds; but the lawful -ownership was in Mary, as a matter of intention on the ■testator’s part, clearly expressed.

*A*codicil, made some two years after the execution of the will, reads as follows:

> “ Whereas, in and by the Eighth clause of said will I did provide that my daughter Rosetta E. Lewis should be the sole judge as to whether my other daughter Mary Elizabeth Lewis should be at any time thereafter of unsound mind or incapable of managing her own affairs, and did impose upon the said Rosetta the duty of exercising such judgment and discretion, and I did also direct that in case in the judgment of said Rosetta my daughter Mary Elizabeth should continue of unsound mind or incapable of managing her own *271affairs, that then the share of the rents and income of the trust estate created by my will which would otherwise be payable to said Mary Elizabeth should be paid by my executors and trustees to the said Eosetta to be applied by her to the care and comfort of said Mary Elizabeth during such period of unsoundness or incapacity; and I being now unwilling to impose upon said Eosetta, by reason of her feeble state of health, the duty of judgment in regard to the mental condition of her sister, do hereby revoke and annul so much and such parts of my said will as impose the said duty upon the said Eosetta; and in place thereof I do hereby provide that the said duty of judgment and discretion as to the mental condition of the said Mary Elizabeth at any time hereafter shall be exercised by the trustees for the time being of the trust estate by said will created, who, in case the said Mary Elizabeth shall, in their judgment, be at anytime of unsound mind or incapable of managing her own affairs, shall pay over, in their discretion, so much of the income of said trust for my daughter Mary Elizabeth as may be required for her comfortable care and support to my said daughter Eosetta, whom I request to assume the duty of the application of such moneys received by her to the use of the said Mary Elizabeth for the purpose of insuring her comfortable care and support.”

It is urged by the parties who would answer the description of persons presumptively entitled to the next eventual estate in the trust fund that this codicil left the income of Mary’s share, not applied to her support, undisposed of; while, on behalf of the executor under her will, the contention is that this income remained her property. In my opinion the codicil did not operate to change the character of the absolute gift- of the income, as made by the will, and the fund in controversy is payable to the Kings County Trust Company, as executor.

It is to be noted that the testator expresses himself in-this codicil only with reference to the duty imposed upon Eosetta of exercising judgment .as to Mary’s mental condition. He does not attempt to alter the provisions of the will whereby this one-fourth share of the income is given.to *272Mary. Presumably be had in mind tbe gift and tbe proviso attaching to it, a proviso which -placed tbe unexpended income in tbe bands of a custodian for tbe beneficiary; and, when executing tbe codicil be bad in mind, as bis words would explain, not tbe prospect of changing tbe beneficiary’s interest, or title, but solely tbe advisability of relieving Rosetta from a burdensome duty. To this end be substituted the trustees’ judgment for Rosetta’s judgment; and, as an incident, be also substituted their possession for hers, as custodians of tbe income not expended. This I take to be bis natural and actual intention as operating upon tbe subject then before him. Certainly bis words, as employed in tbe codicil, do not go far enough to revoke tbe absolute gift made by tbe will; and what be did intend to revoke be states with particularity, excluding anything more. Tbe will and codicil must, of course, be read together; and: *“A*codicil will not operate to revoke a previous devise or bequest beyond the clear import of tbe language used.” Goodwin v. Coddington, 154 N. Y. 286.

In tbe fact that an actual gift of tbe income itself was made to Mary, not merely of so much as should be expended for her, lies tbe distinction between this case and tbe various reported cases cited to the’ proposition that surplus income, not expended for a beneficiary, in tbe exercise .of discretion reposed in tbe trustee, passes as income undisposed of by tbe terms of tbe trust; and the question ,is not affected by tbe circumstance that tbe trustees bad continued to consider this beneficiary incapable of managing her affairs to tbe time of her death. Upon tbe question of ownership under tbe will, this was wholly unimportant, since, whatever tbe exercise of judgment by these trustees, they were- custodians of tbe income, as it accrued, for this beneficiary, and tbe will imported no condition which should divest her of an ownership which bad once -attached. There should be judgment for an accounting accordingly. I have indicated upon tbe proposed findings submitted my disposal of the requests to find.

Judgment accordingly.