The plaintiff is entitled to an interlocutory judgment appointing a trustee and a referee to take and state the accounts and directing that the amount of the trust fund as ascertained by said accounting be paid over to said trustee. Royce v. Adams, 123 N. Y. 402; Horsfield v. Black, 40 App. Div. 264; Wildey v. Robinson, 85 Hun, 362.
A trust was created by the provisions of this will. Matter of Hecht, 71 Hun, 62. The principal is not given to Melinda P. Schmidt for life, but only the “ interest or income as it accruesThe case at bar differs in that particular from Butler v. Butler, 41 App. Div. 477, and Snedeker v. Congdon, 41 id. 433. The direction that she was to have the interest or income as it accrued negatives the idea that she was ever to receive the legal title to the principal. In the case at bar the question is whether she has title, in any capacity, to the fund in dispute; whereas, in the Butler case, the question was not whether Orlando Butler had title or not, but in what capacity he held title. The present case differs further from the Snedeker case, in that the will in the latter expressly named the gift a “ life estate.”
The question of the creation of a trust by the provisions of the will under consideration has in fact already been determined in a proceeding had before the late Mr. Justice Van Yorst, to which *504the defendant Melinda P. Schmidt was a party, and in which judgment was entered on June 16, 1880. The complaint in that action prayed for a construction of the will, and the judgment therein clearly established a trust and directed the setting aside of the trust fund now in dispute. The then executors accordingly set apart a fund, the income of which they paid regularly to Melinda P. Schmidt and as to which they accounted, as trustees, in the Surrogate’s Court in proceedings to which she was also a party and in which they received commissions as trustees. On the setting apart of this fund, it ceased to be a part of the estate, ayd was of necessity held by the f ormer executors as trustees, since it is no part of an executor’s duty to hold funds as an investment for the purpose of paying the income therefrom to beneficiaries Matter of Union Trust Co., 70 App. Div. 5; Matter of Dewey, 153 N. Y. 63. When the defendants Melinda P. Schmidt and Bache McEvers Schmidt were appointed administrators with the will annexed, on the death of the surviving executor, the-fund thus set apart and which is the subject of controversy here, had ceased to he a portion of the unadministered estate of George P. Pollen, deceased, and they were not entitled thereto under their letters of administration. To use the language of Mr. Presiding Justice Van Brunt, “How the -administrators with the will annexed can take anything in respect to this part of the estate, or exercise any authority over it, is inexplicable.” Horsfield v. Black, 40 App. Div. 264, 267.
The plaintiff is entitled to her costs and disbursements and an allowance of $500, all to be paid out of the trust fund. Complaint dismissed as to the infant defendant Melinda P. Schmidt, with an allowance of twenty-five dollars, together with her disbursements, to be paid out of the trust fund, but without a separate bill of costs. Settle decision and interlocutory judgment on one day’s notice.
Ordered accordingly.