Francis J. Gasquet and John Duer, as Trustees, etc., under the Will of Eveline G. Marshall, Deceased, for the Benefit of Marie Marshall and Remaindermen, Appellants, v. Louise M. Pollock and Others, Respondents

Francis J. Gasquet and John Duer, as Trustees, etc., under the Will of Eveline G. Marshall, Deceased, for the Benefit of Marie Marshall and Remaindermen, Appellants, v. Louise M. Pollock and Others, Respondents. Trust — to apply income to the use of a person of unsound mind—the committee is entitled to all income not required for her support. Where, under the provisions of a trust created by will, the trustees are directed “ to receive the interest, income and profits (of a share of the estate) and to apply the same to the use ” of a daughter of the intestate who is of unsound mind, “ and upon her death to assign, transfer and set over the said share to her children,” etc., the whole income is given to the daughter, and she is entitled to have it all. The words “ apply to the use of” are equivalent to the words “pay over to.” . Where, in such case, a committee has been appointed for the cestui que trust, the committee is entitled to receive any income beyond the necessary expenses of the cestui que trust, which has accumulated in the hands of the trustees. Appeal by the plaintiffs, Francis J. Gasquet and another, as trustees, etc., under the will of Eveline G. Marshall, deceased, from so much of a judgment of the Supreme Court, entered upon the decision of the court rendered after a trial at Special Term upon the report of a referee, as directs that the plaintiffs as trustees of the trusts created by the will of Eveline G. Marshall, deceased, for the benefit of Marie Marshall and remaindermen, pay over to J. Frederic Kernochan as committee of Marie Marshall the total accumulated income in their hands on May 11, 1895, less the commissions, costs and allowances thereinbefore directed to be paid, and from each and every portion of said judgment in any way relating to said payment. The action was brought for an accounting by the plaintiffs as trustees under the will of Eveline G. Marshall. The testatrix had three daughters, one of whom was of unsound mind. By her will the testatrix divided her estate into three equal parts. She gave to the daughters of sound mind each an undivided one-tliird of her estate, and she gave the remaining one-third of her estate to the plaintiffs in trust for the benefit of the daughter of unsound mind, by the following language: “ The remaining one of said three shares I give and bequeath to my executors, in trust, nevertheless, to invest and keep the same invested * * * and to collect and receive the interest, income and profits thereof and to aioply the same to the use of my daughter Marie Marshall during her natural life, and upon her death to assign, transfer and set over the said share to her children, if any,” etc. A committee has been appointed of this daughter of unsound mind and is a party defendant in this action. The income upon this trust fund has accumulated in the hands of the trustees beyond the immediate necessities of this daughter, to the amount of $100,000> and upwards. The decree herein ordered such accumulated income to be paid over to such committee. From this provision in the decree this appeal is taken, the trustees claiming that they are entitled to retain all accumulation of income from this fund in their hands until the death of this daughter. Welcome S. Jarvis and George A. Strong, for the appellants. J. Frederic Kernochan, for the respondents. [MAJORITY — Williams, J.:] Williams, J.: It will be observed that by the will only the one-thwd share of the estate itself was given, after the death of this daughter, to her children, etc. The income therefrom was directed absolutely to be applied to the use of the daughter. There was no discretion given the trustees to apply to her use a part only of the income, nor as much as her needs required, nor as much as, in the judgment of the trustees, she heeded. The whole income was given to the daughter, and she is entitled to have it all. The fair construction of the language used in the will is that the income shall be paid over as it -accrues to the daughter. ' The words “ apply * * * to the use of,” are equivalent to the words “ pay over to.” (See Leggett v. Perkins, 2 N. Y. 297; Moore v. Hegeman, 72 id. 376.) If the daughter was of sound mind she would be entitled to have the income cvpjplied to her use by having it paid over to her as it accrues. Being of unsound mind, she is represented by her committee, who is entitled to have the accumulated income paid over to him. The decree was, therefore, correct in the respect complained of and should be affirmed, with costs to the respondents to be paid out of the fund. We think, under the circumstances, no costs should he allowed against the appellants. • Van Brunt, P. J., Rumsey and Ingraham, JJ., concurred. Decree affirmed, with costs to respondents to be paid out of the fund.