1 think this judgment'should be reversed. ■ The complaint alleges that on or about February 18, 1902, one Charles L.' Tiffany, died, leaving a last will and testament which was duly admitted to probate by the surrogate of JSTew York county; that, in and by said will the defendants were appointed executors of and trustees under . the said will and letters testamentary were issued to them; that in and by said will a large amount of property -was given to said executors and trustees in trust to invest the same and to collect the income thereof, and to apply such part of the same as in their discretion they should from time to time deem proper, to the use of the defendant Burnett Y. Tiffany for and during his natural life; that pursuant to said provisions of said will, the said executors arid trustees have heretofore fixed the sum of $18,000 a year, or $1,500 a month, as the proper amount to be paid to the defendant Burnett Y. Tiffany, and for a long time they have been paying him and are now paying him the sum of $1,500 a month in equal quarterly payments, every month. '■
The defense demurred to alleges, the death of Charles L. Tiffany, the making of his will and codicil thereto, copies of which are annexed to the answer as a part of the defense.. It is then alleged *219that the defendants, in the exercise of their discretioh, fixed upon the-sum of $18,000 per annum, payable in equal monthly installments of $1,500, as a proper .amount at that time to pay to the said Burnett Y. Tiffany; that pursuant to the directions of the testator in said will and codicil contained, these defendants have from time to time .paid the balance of the income from the property held in trust, as directed by said will and codicil, to Annie O. Mitchell and Louis 0. Tiffany, the persons named therein.
It appears from the codicil to the will that the testator gave to his executors in trust certain property to invest the same and to collect the net income thereof, and to apply such part of the same as in their discretion “ they shall from time to time deem fit and proper, which discretion shall not be in any manner interfered with by any court, to the use of my. son Burnett for and during his natural life and to apply the balance of said net incoin e during the life of my son Burnett to the use of my son Louis C. Tiffany and my daughter Annie O. Mitchell,” with a bequest over, and with the following clause : “ And in my opinion which, however, is not to control the discretion- of my executors unless a radical change shall take place in his life and habits the sum of Three thousand (3,000) dollars per annum payable in monthly installments will be an ample amount for his proper support and maintenance.” The complaint did not set out a copy of the will, but only an abstract of its contents. The defendants, by this separate defense, set forth the will and codicil in full, and if, from the provisions of the will and codicil, it appears that this action cannot be sustained, then the defense is good. The will do'es not authorize the trustees to determine that a specific amount of income should be payable to Burnett Y. Tiffany, which amount would thou become payable to him, but directs them to apply such part of the income as in their discretion they shall, from time to time, deem fit and proper, which discretion shall not in any manner he interfered with by any court, with a provision that the balance of the income from the trust fund which should not be applied by the trustees to the use of his son Burnett should be paid to another son and a daughter. It seems to me that the effect of this provision is that all the income from the trust estate, not actually applied by the trustees to the use of Burnett, becomes at once the property of his other son and daughter, and that the trustees are *220bound to pay to them such unapplied income. The testator considered that the sum of $3,000 per annum would be- sufficient .for the proper support and maintenance of his son, but this was advisory' merely, and this provision was not to control the discretion of the-trustees; but it seems to me that there could be no accumulation of income to which either the son Burnett or his creditors would be entitled under this clause of the will. If the trustees failed to apply any portion of the income, whether they had determined that a certain amount of income should be paid to Bui-nett, or not, the amount that they failed to apply for his support and maintenance became at once the property of his brother and sister, and neither Burnett nor his creditors could compel the trustees to pay it to him or them. This trust property ánd the income is not, and never was, the'property of Burnett Y. Tiffany, and neither to the principal nor the income has he acquired any right or title. There was nothing, therefore, that his .creditors could reach by a creditor’s bill. The testator had a right to do what he pleased with liis own property. He had a right to limit the interest of a, legatee or beneficiary in the property, and, having such absolute power of disposition, he left property in trust, with a discretion to his trustees to apply a portion of the inpome to the . support of his son, and that the balance of the income of • the trust property not so applied should be paid to the others named. The persóns who were entitled to the balance of the income acquired a vested right in the income ' not used for the support and maintenance of the son, and the court cannot, as I view it, interfere with their vested right to such income in favor of either the son or his creditors.
I think, therefore, that this was a good defense to the action,, and that the demurrer to it should be overruled.
Judgment affirmed, with costs, with leave to defendants to amend on payment of costs in this court and in the court below.