In the Matter of the Application of Chemung Canal Trust Company, as Successor Trustee to Isaac Baldwin for Marjorie Elizabeth Baldwin, under the Last Will, etc., of J. Scott Baldwin, Deceased, Respondent, for an Order to Mortgage the Real Property of Said Decedent. John De Jarnette Micks, Jr., and Others, Appellants

In the Matter of the Application of Chemung Canal Trust Company, as Successor Trustee to Isaac Baldwin for Marjorie Elizabeth Baldwin, under the Last Will, etc., of J. Scott Baldwin, Deceased, Respondent, for an Order to Mortgage the Real Property of Said Decedent. John De Jarnette Micks, Jr., and Others, Appellants. [MAJORITY] Order modified by providing that whenever the net income payable to the life beneficiary shall exceed $4,000 such excess shall be applied to or reserved for the payment of the principal of the mortgage, and as so modified affirmed, with disbursements of this appeal payable to all parties filing briefs, with leave to later apply for modification at the Special Term if conditions change. Hill, P. J., MeNamee, Crapser and Bliss, JJ., concur; Rhodes, J., dissents, with a memorandum. [DISSENT — Rhodes, J.] Rhodes, J. (dissenting). I dissent in so far as the decision specifically and arbitrarily fixes the amount of income payable to the life beneficiary. The court should not substitute its judgment and discretion for that of the trustee. (See Matter of Shea, 234 App. Div. 176.) The order should direct the trustee, out of the income received, when available, to pay such amount as in its judgment is reasonable and proper for the support and maintenance of the life beneficiary and to apply the balance in reduction of the mortgage.