Where a will directs an executor to invest a legacy and apply the income thereof to the use of the legatee, the principal of the fund is to be held by him as trustee.
YOUNG, J.
The provisions of the will that the executor invest these legacies, apply the income from them to the defendants' use, and collect the note which forms a part of the legacy given in the fourth clause, are all the evidence there is as to whether the testatrix intended that these legacies should be paid to the defendants, or held in trust for them. Giving the language used in these provisions its ordinary meaning, it is the duty of the executor to keep these legacies invested, collect their income, and apply it to the defendants' use, and he could not conveniently perform these duties unless he retained possession of the legacies; and it is very improbable that she would have directed him to collect the note if she intended that the legacy of which it forms a part should be paid to the legatees, for that would be directing him to collect this note from the legatees and return its proceeds to them as soon as collected. These provisions show she intended that her executor should hold these legacies in trust for the defendants, and his duties in respect to them are those of a trustee. Ward v. Ward, 105 N.Y. 68, 74.
Case discharged.
All concurred.