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AGNES C. ANDERSON, Appellant, v. WILLIAM H. HINRICHS et al., Respondents.

Action to establish plaintiff's interest in a trust estate, for an accounting, and for other relief. Plaintiff appeals from a judgment dismissing the second cause of action and directing defendant William H. Hinrichs, as trustee, to file a limited account as to matters set forth in her first cause of action. Judgment modified on the law by striking out the second decretal paragraph and in place thereof inserting a provision directing defendant William H. Hinrichs, trustee, to render and have judicially settled a full account of his proceedings as trustee. As so modified, the judgment is unanimously affirmed, without costs. Finding of fact numbered "11" is reversed. In all other respects the findings of fact are affirmed. Conclusion of law numbered "1" is reversed. A new conclusion of law is hereby made to the effect that plaintiff has a beneficial interest in the trust fund set aside for her and that she is entitled to a full accounting of the acts and proceedings of the trustee in the administration of the trust. The judgment is modified without prejudice to appellant's right to renew her application for the trustee's removal after such accounting, if she be so advised. We find as a matter of law that the trust agreement provides first for the payment of the income from the trust fund to the settlors of the trust for the life of the father. After his death the trustee is directed to divide the trust estate into three equal parts and to set aside one of such equal parts for plaintiff, with remainder over to her issue, if any survive. The trust agreement gives to the trustee uncontrolled discretion as to the amount of the principal or net income that shall be paid to plaintiff. This does not mean that the courts are without authority in a given case to control the exercise of the discretionary power vested in the trustee. ( Colton v. Colton, 127 U.S. 300; Carrier v. Carrier, 226 N.Y. 114.) Plaintiff has a beneficial interest in the fund set aside for her and is entitled to a full accounting.

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ANDERSON v. HINRICHS
(Jun 21, 1943)