In re the Estate of Donahue

Appeal from an order of the Surrogate’s 'Court of Chenango County which directed the trustee to exercise the authority conferred upon him by the will to make payment of debts and expenses incurred by the beneficiary, now 96 years old, for nursing care and for taxes upon and fuel for her home, from the principal of a testamentary trust amounting to approximately $88,000. It was indicated upon the oral argument that the remainderman had consented to, or, at least, had interposed no objection to the requested invasion of principal, which the trustee had power to effect in any event. The record in the Surrogate’s Court should be clarified in respect of the remainderman’s acquiescence; and counsel for respondent is directed to forward to the remainderman forthwith a copy of the order to be entered hereon. Order affirmed and case remitted to the Surrogate’s Court, subject to reopening and reconsideration by that court upon prompt application by the remainderman, with costs to respondent payable out of the trust fund. Gibson, P. J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum Per Curiam.