#### In the Matter of the Estate of Michael Condax, Deceased.

Surrogate’s Court, New York County,

March 13, 1958.

*820
      *Melvin Howard Osterman, Harold L. Lipton*and *Edgar H. Booth*for Sátiros 1ST. Cachulis and another, as executors and trustees, petitioners.

*Lamb, Saytanides $ Mulaine,*respondents in person. •

*Harry Harris,*special guardian for Constantine Condax and another, infants, respondent.

*John J. O’Connor*for United States Fidelity and Guaranty Company, respondent.

S. Samuel Di Falco, S.

In this proceeding to settle the account of executors and trustees and for a construction, the court construes the will as follows: Under paragraph Fourth thereof the widow is entitled to one third of the net estate after deduction of funeral and administration expenses and debts, but before deduction of taxes *(Matter of Whitman,*125 N. Y. S. 2d 165).

Under paragraph Fifth the testator clearly intended to establish four separate trusts for the benefit of his four children, to be administered as a single trust *(Matter of Colegrove,*221 N. Y. 455). The income should be allocated in equal shares to the beneficiaries. All unexpended income over and above that applied by the trustees for the support, maintenance and education of infants is payable to them upon attaining majority, as persons presumptively entitled to the next eventual estate. Upon the beneficiaries attaining majority, all income thereafter accruing upon their trusts shall be paid over to them in full *(Matter of Missett,*136 N. Y. S. 2d 923 and cases cited therein). Under the clear language of the will the provision for invasion of principal is only applicable until the beneficiaries reach the age of 25. The income earned during administration is payable to the widow on her share and to the beneficiaries of the residuary trust subject to payment of interest on the general legacy (Personal Property Law, § 17-b; Surrogate’s Ct. Act, § 218). There is a gift by implication to the issue of a child who dies leaving issue surviving *(Hadcox*v. *Cody,*213 N. Y. 570; *Matter of Hayes,*263 N. Y. 219; *Matter of Haber,*281 App. Div. 383, afird. 306 N. Y. 706).

The special guardian objects to commissions as computed in Schedule K in that they are claimed on unsold real property constituting part of the residuary estate. Petitioners claim that *821under section 285 of the Surrogate’s Court Act commissions should be allowed on the value of the property since it is part of the residuary estate, was the subject of a partition action commenced by decedent in' his lifetime and continued by the executors and trustees which resulted in a settlement, and rents have been collected for some time and its share thereof allocated to the estate. The court holds that the executors are entitled to commissions as shown in the account and the objection is overruled.

There being no objection the reasonable compensation of the attorneys for petitioners is fixed and allowed in the amount requested and the claim for compensation prayed for in the petition is allowed.

The prayer of the petition for authorization to abandon worthless securities is granted.

The trustees are permitted to resign and the court will appoint a successor trustee or trustees upon nomination of the parties.

Submit decree on notice settling the account and construing the will accordingly.