In re Kohler

Smith, J. (dissenting):

Granting that this will provides for a trust to pay an annuity, the primary duty of the trustee is to set aside sufficient of the corpus of the estate to execute the trust. The balance he must give to the residuary legatees. If later it should develop that the part set aside be larger than is necessary for that purpose he should pay such excess to the residuary legatees. If it should prove less then he may pay the annuities from the corpus. I think he may, under this will, keep the fund in the business and his right so to do is not temporary but may extend in his discretion throughout the trust period. If the profits be excessive, that is, much greater than necessary to pay the annuities, either the corpus of the fund withheld from the residuary legatees should be diminished, or if such a course would imperil the possibility of full payment in the future the court may adopt an alternative to give the excess income to the residuary legatees. Excess income may be retained in the case at bar sufficient to provide an up-keep fund for the business or possibly to appropriate such part thereof as may be shown to be necessary to make the business income producing. Further than- that the accumulation of profits is, I think, illegal. (Hascall v. King, 162 N. Y. 134.) The annuitants have no cause of complaint if the corpus of the estate as it came to the trustees is preserved for the payment of their annuities. Where no specific sum is set aside for the payment of annuities I think the court has power to require the trustee to give to the residuary legatees at any time any part of the corpus set aside for payment of annuities that may be unnecessary therefor or any part of excess income if it be deemed unsafe to impair that corpus. Section 63 of the Real Property Law has no application as the residuary legatees are entitled to whatever is unnecessary to pay the annuities.

Decree modified as stated in opinion and as .so modified affirmed.