Drewen, J.c.c. (temporarily assigned).
In the pretrial order the issues herein are framed as follows:
(a) Construction of the will;
(b) Determination as to whether the plaintiff-trustee is under any liability to the defendant County of Hudson with respect to the testamentary spendthrift trust for the benefit of Jean Verona, an incompetent.
The pertinent facts may be summarized as follows: Jean Verona is an inmate of the Hudson County Hospital for Mental Diseases, as an indigent patient. She was committed June 26, 1951. On June 4, 1955 the will of Joseph Verona, father of the said Jean, was admitted to probate, and the matter now in controversy revolves around the trust provisions of the third paragraph of the will. Plaintiff, as executor, has settled the claim of defendant Hudson County for the care of Jean up to the date of Joseph's death. Plaintiff, as trustee, resists the efforts of defendant county to reach the income of the testamentary spendthrift trust for reimbursement for Jean's care subsequent to the death of her father.
R.S. 30:4-66, as amended, makes every patient in a state institution personally liable for his own maintenance therein, and makes the father and mother and certain other ancestors and descendants of the patient liable for the support when the patient himself is indigent.
The will of Joseph Verona establishes a spendthrift trust for discretionary payment to Jean of a maximum of $6 per week, for her "pleasure or comfort," the discretion being given for the withholding of such payments should the income "become * * * payable to some other person."
The trustee and the guardian ad litem argue substantially as follows:
(a) It was the clear intent of the settlor to provide the weekly $6 for comforts, and not for institutional board and keep;
(b) The county cannot reach the trust income on account of the obligation of Joseph Verona, because that obligation died with him, under the terms of R.S. 30:4-66, as amended;
(c) The county cannot reach the trust income in the hands of the trustee on account of the obligation of Jean Verona, because she has no title to the funds until they are in her hands. And if she has an estate in the funds, it is not subject to execution under N.J.S. 2 A:17-50 (which makes income in excess of $18 per week subject to execution);
(d) Assuming that the claim of the county is allowed, the trustee could exercise his discretion to withhold the income from Jean and ...