McLean v. McLean 10 N.Y. Sup. Ct. 395

JOHN S. McLEAN, Executor, etc., Respondent, v. WILLIAM T. McLEAN, Appellant, and others.

WiU—action f or construction of—what questions pertinent in—, matters left to discretion of executor.

In an action brought to obtain a construction of a will by which one-fourth of the residue of the testator’s estate was devised and bequeathed to his executor in trust for the life of one of the defendants in the action, with power to the executor to convey such portion to defendant at any time when the executor should be satisfied that he would make a prudent and proper use of it; held, that that portion of an answer asking an adjudication that the executor was *396satisfied that the defendant would make a prudent and proper use of such part of the estate, was properly stricken out. It was a matter discretionary with the executor, and formed no part of the controversy which the action sought a settlement of.

Appeal from an order striking out a portion of the answer of the defendant William T. McLean.

F. <& F. Tillou, for the appellant.

Alfred W. Lowerre, for the respondent.