In re Mason , 4 Edw. Ch. 418 ( 1845 )

The Vice-Chancellor :

The testatrix died in April one thousand eight hundred and thirty. Felix O’Neil was the sole acting executor and trustee of the house and lot No. 90 Mulberry street, up to the time of his death in December one thousand eight hundred and forty-one. Mr. Mason succeeded him as trustee of the house and lot, under an order of this court made on the twelfth day of January one thousand eight hundred and forty-two. The former trustee’s accounts are not presented so as to show whether or not he set apart or kept in his hands, out of the rents, the three hundred and fifty dollars given to each of the two younger boys. It was his duty, by the will, to obtain, out of the rents, that amount of money for each of them before appropriating the rents to other purposes’: and, when those sums were made up, he was to deposit the money in the Savings Bank for them or to expend it in their education and support. It is to be presumed, until the contrary is proved, that the former trustee performed his duty in that respect and that, during the nine years of his stewardship, he either expended that amount of money for the two boys out of the rents before making a general division among all the children or deposited it in the bank or retained it in his hands for them. Even if it should appear that they have never had the benefit of these preferred gifts of three hundred and fifty dollars out of the rents, it does not follow that the money is now to be paid out of the capital of the estate. Those were not gifts or legacies charged upon or payable other than out of the rents ; and there is no sufficient reason, in my opinion, for allowing Henry to take the three hundred and fifty dollars out of the proceeds of sale of the house and lot at this time. Eliza McGrath, the infant, is entitled to her one-third of the net proceeds of sale, in right of her mother, free from the deduction of Henry’s three hundred and fifty dollars. In all other respects, I believe the master’s report upon the accounts and in relation to the distribution of the funds in Mr. Mason’s hands, as trustee, is correct.

Ordered: That the three hundred and fifty dollars, claimed to be due to Henry C. O’Neil out of the proceeds of the sale of the house and lot, bp disallowed ; and that the nett proceeds of the purchase money in the hands of John L. Mason, as trustee, free from such deduction or claim, be divided, two-thirds thereof to Henry C. O’Neil and one-third to the infant Eliza McGrath and that her share be paid into court, to be invested for her benefit. The costs of the petitioner, including the master’s bill on the reference and the costs of the infant, to be paid out of the fund before the division is made.