In re the Construction of the Will of Upjohn (279 A.D. 675, 1951)

The case of Matter of Horn (256 N. Y. 294) is to be distinguished generally on its facts. Moreover, it is to be particularly noted inter alia there was not there, as here, an alternate method of distribution. (Matter of Horn, 231 App. Div. 747; Matter of Charles, 200 Misc. 452.) The provisions of the decree construing the language of the will in paragraph Seventh (B) dividing corpus, and directing distribution in accordance with that construction are struck out because this proceeding was exclusively concerned with the income provision of paragraph Seventh (C) of the will. It was an improvident exercise of discretion to charge corpus of trusts, other than the one affected, with the payment of costs and allowances. Present — Nolan, P. J., Carswell, Adel, Sneed and Wenzel, JJ.