#### In the Matter of the Judicial Settlement of the Account of the Proceedings of Louis J. Schwartz, as Committee of the Estate of Thomas J. Patton, an Incompetent Person, Respondent. River Crest Sanitarium Company, Appellant; Central Islip State Hospital, Respondent.

First Department,

June 9, 1911.

Will — trust — incompetent person — claim of asylum for care — priority of claim of State institution.

A trust of personalty may be created for any l&wful purpose and no particular form of words is necessary.

Where a testatrix gave and bequeathed all her estate to her insane brother and followed the bequest by a direction to her executor' “to take the proceeds of my estate 7⁄8 * 7⁄8 and to deposit same in some Trust Company as a trust fund, for my brother 5⁄8 * 7⁄8 with directions that the principal and interest shall be used for his maintenance and support” until exhausted, it is apparent that her intention was not to make a direct gift to the brother, but to create a trust fund for his. benefit.

The fact that this trust fund later came into the possession of the brother’s committee does not make it the property of the incompetent.

Where the insane brother was, after testatrix’s death, removed from the asylum in which he had been confined to a State institution, the claim of the first asylum for his care and board should be paid out of the trust ■ fund before the claim of the State institution for his subsequent care.' This is so, although section 86 of the Insanity Law provides that all claims of-the State upon relatives liable for the support of a patient or upon . money held by such patient shall be preferred.

Laug-hlin, J., diseented.

Appeal by the River Crest Sanitarium Company, from'an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of March, 1911, directing the committee of the estate of .an incompetent person to pay certain moneys for the support and maintenance of the incompetent.

*Leopold Spitz*and *Huntington W.' Merchant,*for the appellant.

*Hárry W. MacTc,*for the respondent Central Islip State Hospital.

*286Scott, J.:

This appeal presents the question as to the proper disposition of a sum of money left by one Mary E. Patton for the care of her brother, Thomas Patton, an incompetent.

In February, 1902, • Thomas Patton wás committed to the appellant Biver Orest Sanitarium as an incompetent person, and at some time, as it appears, the above-named Louis J. Schwartz was appointed the committee of his estate. Patton at that time was in apparently prosperous circumstances, but his fortune declined and has finally disappeared. His sister Maiy E. Patton, preserved her interest in him until her death, calling from time to time at ■ the sanitarium to pay his bills. She died on April 29, 1908, leaving a will which undertook to make provision for his care. Patton remained in the sanita-1⁄8 rium'until March 29, 1909, when he was removed to the Cen-. tral Islip State Hospital. At that time there was due to the Biver Crest Sanitarium the sum of $302.96 for the board and care of said incompetent.

•The accounts of the above-named committee show that he holds in his hands the sum of $144.32, of which $23.25 came from the sale of property belonging to the incompetent, and the balance came from the estate of the sister, Mary E. Patton, deceased. The Central Islip State Hospital claims $383.64 of this amount for the maintenance of said Patton since his admission to that hospital, resting its claim upon section 86 of the Insanity Law (Consol. Laws, chap. 27 [Laws of 1909, chap. 32], as amd. by Laws of 1910, chap. 608) which provides as follows^ “ In all claims of the State upon relatives liable for the support of a patient, or upon moneys or property held by said patient, the State shall be deemed a preferred creditor.”

It does not appear that there are any relatives liable for the support of Patton, and it, therefore, remains to be determined whether the fund out of which the State seeks payment belongs to Patton. As has beén said, practically all of the fund came from his sister, under her will, which reads as follows: *‘‘First.*After my lawful debts are paid, I give and bequeath all my estate, money in bank, real property,' personal property or mixed to my' brother Thomas Patton for his own use and benefit forever, but he being confined in the Biver Crest Sanita*287rium, suffering from insanity, I direct my executor or executrix herein named to take the proceeds of my estate as above mentioned and to deposit same in some Trust. Company as a trust fund, for my brother Thomas Patton, with directions that the principal and interest shall be used for his maintenance and support until the entire principal and interest shall be exhausted. I hereby appoint May J. Connerton to be executrix of this my last will and testament, I hereby revoking all former wills by me made.” The will is not skillfully drawn, and seems to include two inconsistent dispositions of the estate. The. first clause, if it stood alone,' would seem to indicate an intention to make a direct gift to the brother of the residuary estate. Reading the whole will together, it is apparent that' this was not the testatrix’s purpose, for she explicitly directs that the estate shall constitute a trust fund to be used for the brother’s maintenance and support as an incompetent person, the River Crest Sanitarium being the institution then uppermost in her mind. A trust of personalty may be created for any lawful purpose, and no particular form of words is necessary to create it. Reading the whole will together, it is apparent that the purpose of the testatrix was to devote her entire estate to the use and benefit of her brother, and that to accomplish this purpose she created a trust. As no other trustee was -named, the duty to execute it fell upon the executrix, and it was her distinct duty to erect the trust fund contemplated by the will and to pay for the maintenance of the incompetent as the charges therefor accrued until the whole amount was eaten up.' If she had done this the charges of the River Crest Sanitarium would have been paid down to the time that the incompetent left that institution. Whatever was left might thereafter properly have been paid to the State hospital until it was exhausted. The papers do not disclose how the funds of Mary E. Patton’s estate came to be paid to her brother’s committee. As we construe the will he never became entitled to them as committee. The committee has, however, in some way come into possession of the fund, but that fact does not make it the property of the incompetent, for the executrix by parting with the fund could not defeat the intention of the testatrix. The above-named Louis J. Schwartz must be deemed to have received and to *288hold the money coming from the estate of Mary E. Patton, deceased, as the agent of the executrix, and subject to the trust created by the will of Miss Patton, and he can properly be directed to make the same disposition of it that the executrix should make if she had retained the fund. The order appealed from which awards the full amount of its claim to the Central. Islip State Hospital must be reversed, and the said committee directed to pay first to the Eiver Crest Sanitarium Company the amount due to it for the care of the incompetent down, to the time he left that institution, with interest, and the remainder of the funds in his hands, not otherwise applicable, to the Cen- • tral Islip State Hospital.

Ingraham, P. J., Clarke and Miller, JJ., concurred; Laughlin, J., dissented.

Laughlin,'J.

(dissenting):

The only theory on which the Supreme Court can, on application to i$ by motion, exercise jurisdiction to direct the distribution of the fund in the hands of the committee of' the property, of the incompetent person, is that such fund' has become part of the estate of the incompetent; and since it is in the hands of the committee as such, I think it must be regarded as part of said estate. If so, then the claim of the State is preferred under the statute and the order is right. As I view the case, no question with respect to the construction of the will of Mary E. Patton,' the sister of the incompetent, is presented for decision, and I, *therefore,*express no opinion as to whether the.Eiver Orest Sanitarium took any property or interest in property thereunder; but if it did, it would seem that its remedy would be to call the executor to account. . .

Order reversed and order entered as directed in opinion.. Order to be settled on notice.