In re the Judicial Settlement of the Accounts of Woods

With some hesitation I concur in brother Hardin’s opinion for the reasons given. I do so the more readily because the disposition ' of the matter made by the surrogate seems to me very unjust. The whole estate going into the executor’s hands was:

$23,008.52 in 1883 .............................. $23,008 52

It is conceded that $14,000 of these assets were paid by and through the widow to residuary legatees.... 14,000 00'

$9,008 52

The executor was also credited :

Schedule B.......................... $1,808 58

Schedule C.......................... 460 00

Schedule D......................... 509 38

Paid S. W. Woods, in Schedule E...... 478 00

Paid S. W. Woods, cows, Schedule E... 48 00

.Executors’ commissions............... 420 16

Sarah Woods, 17th finding............ 226 00

-:--- 3,950 12

Leaving an apparent balance of.............. $5,058 40

in the .executor’s hands to be accounted for. This may not be accurate, but it is near enough to illustrate what I have to say. *67Now the residuary legatees got, April, 1853, the above $14,000 on which they have paid but one year’s interest, and they have énjoyed such sums for a quarter of a century before they were entitled to it, by the conrtesy and consent of the executor and the widow. During all that time the widow was entitled to the interest on that sum as well as on the above balance of $5,058.40. The residuary legatees never paid it after the first year. The executor was never released from his obligation to pay it, especially if his payment of that sum to the widow, and through her to the residuary legatees, was, as the surrogate finds, wrongful and in violation of the terms of the will. Because the widow consented that a certain portion of1 the trust fund might be paid directly to the legatees, she did not waive her claim to the income of it so long as the assets remaining in the hands of the executor were sufficient therefor.

The legatees, in receiving said payments, recognized the widow’s right to interest upon the $14,000 during her lifetime, but did not pay or contribute to it except for the first year. The executor paid the above balance of $5,058.40, and much more to the widow, without their paying her all she was entitled to under the will. And now these residuary legatees wish to hold the $14,000 paid them in April, 1853, to be exempted from payment of interest thereon for twenty-four years, which, at seven per cent, would amount to over $20,000, or, at $500 per year, would amount to $12',000, and finally, to compel the executor to pay to them moneys which he has already paid to the widow in satisfaction of what they had agreed to pay her, as well as in satisfaction of his legal obligation and duty under the will. It is plain that such payments by the executor to the widow have more than exhausted the $5,058.40 balance in his hands, and that by such payments the legatees have been benefited in exemption from payment of interest to a far greater amount. The claim seems to me so palpably inequitable and unjust that, if possible, it should not succeed.

I think the surrogate might justly have held, as law, that the executor was bound to pay the widow the income of the whole residuary estate notwithstanding the payment of the $14,000 to the legatees, so long as the assets in his hands sufficed therefor, and that when it was exhausted the widow would be estopped, by her consent to such payment, from any further demand of interest from *68the executor. He' might have well held that the contestants, by their receipt of $14,000 in 1853, had received the value of their interest in the residuary estate, while the widow, who only received $5,058, or thereabouts, had received much less than she was entitled to under the will and under all the facts and contracts in evidence in this case. In equity and justice the contestants are not entitled to anything more out of the executor or the estate, beyond what they received in 1853, twenty-five years before they were entitled to receive the same.

So that I think, for this reason also, the decree of the surrogate should be reversed, and as the estate has no moneys with which to pay the costs, the contestants should be charged with the costs of this appeal and of the accounting. •

Decree of the surrogate of Oswego county reversed, with costs and disbursemen ts of the appeal to appellant, payable by respondents personally, and costs of the proceedings to abide the final award of. costs by the surrogate.

So far as the payment and delivery of the assets to the widow embraced in the item of $17,101.52 found to have been paid to the legatees and received by them no question arises. The principal part of that payment seems to have been made by the executors delivering that sum of money, or assets taken in substitution for money by the widow with her assent, and she distributed to the seven sons $14,000 thereof, to wit, $2,000 to each of the seven sons, pursuant to an arrangement entered into shortly after the executors entered upon the discharge of their duties as such. When the seven sons received the $14,000 they respectively assented to the distribution thereof in the manner already stated. And they respectively entered into bonds by which they agreed to pay to their mother the widow, in semi-annual payments of interest, sums sufficient to yield her $500 a year. That arrangement seems to have been made *64under the advice of an attorney named John B. Watson, residing at Bioldand, then acting as the counsel for the parties interested in the estate. The distribution of the $14,000 and the incidents connected therewith, to some extent shed light upon the understanding of the legatees of the provisions of the will. By the terms of the will it was the duty of the executors, and they had the right to collect and turn into cash all the personal assets and securities of the estate and to pay therefrom the délpts and specific legacies. The more important question is in respect to the right and duty of the executors in regard to such funds as should remain in their hands after payment of the debts and specific legacies. From the provisions of the will it is apparent that the design of the testator was that his widow should during her life have the use of that part of the testator’s estate not specifically given or devised absolutely. We think it was the intention of the testator that the widow should have the use during her life of his real estate and whatever there remained of his personal estate after payment of the specific legacies named in the will, and the same was, viz.: “ To be used and enjoyed by her during the term of her natural life.” . The provisions of the will seem to cast upon the executors the imperative duty of collecting all debts and claims, and after turning the same into cash to deliver the same to the widow for her enjoyment during her natural life. The language of the will is quite, explicit in the twelfth provision thereof.. The testator says : “I hereby direct my said executors to collect all debts, dues, obligations, claims and demands which may be> found belonging to me at'the time of my decease from any and every and all person or persons whomsoever, or so much thereof as inay prove collectible, so soon as the same can be legally and conveniently done, and the proceeds and avails thereof to pay over and deliver to the person or persons entitled to receive the same according to the directions and provisions in this my last will and testament contained.”

In the eleventh provision he had already declared that “ the remainder of his personal estate was given unto hi-s wife, to be used and enjoyed by her during the term of her natural life.” Construing those two provisions together, we think it was quite obvious that it was the intention of the testator that the executors should deliver “ the rest, residue and remainder ” of his personal estate to the widow, *65to the end that she might have the use and enjoyment thereof during the term of her natural life. It therefore became the duty of the executors “to pay over and deliver to her the avails of the personal estate.” In reaching this conclusion we have also considered the phraseology of the will wherein the remainder of the estate, left at the close of the life of the wife, is given to the seven sons. The language is as follows, viz.: “And from and immediately after her decease I give and devise the same to my said sons William Woods, James Woods, Gilbert A. Woods, Chauncey O. Woods, John Woods, Challes Wesley Woods and Thaddeus Waite Woods, their heirs and assigns forever, to be equally divided between them, share and share alike.” By this provision it is obvious that they were not to take until the close of their mother’s life, nor was the property to be divided, “ share and share alike,” until the happening of her death. In the will no words are found creating a trust nor appointing a trustee; in no part of the will are the executors denominated trustees.

As before observed, we are of the opinion that it was the duty of the executors to gather in the personal effects and turn them into money, and pay over and deliver to the widow the same, to the end that she might enjoy and use the same during her natural life. The executors were not directed to invest the funds, and we think the direction to pay over and • deliver was imperative. (Flanagan v. Flanagan 8 Abb. N. C., 413 ; Smith v. Van Ostrand, 64 N. Y., 282; Billar v. Loundes, 2 Demarest, 591; In the Matter of Weppeler, Id., 626; Parsons v. Best, 1 Thompson & Cook, 211; Redf. on Surrogates [2d ed.], 426.) We think the case before us differs from Calkins v. Calkins (1 Redf., 337). In that case the language employed by the- testator was unlike that found in the will now before us. True, the wife Nancy was “ to have and to hold as long as, she shall live,” but the will contained no provision directing the executor to deliver and pay over to her, as found in the will now under consideration. This case is unlike those where the direction is to pay over the income to the person entitled to the life estate. In such cases it is obvious that the testator did not intend that there should pass into the hands of the life tenant anything more than the income of the estate. (Spear v. Tinkham, 2 Barb. Ch., 211; Covenhoven v. Shuler, 2 Paige Ch., 122.) In such cases the executor *66cannot discharge his duty by paying the fund over to the life tenant. (Livingston v. Murray, 68 N. Y., 485.) In such cases, before the executor is warranted in delivering the funds to the life tenant, he should exact security. (Livingston v. Murray, supra.)

In short, we find nothing in the provisions of the will before us indicative of an intent on the part of the testator that the executors should act as trustees during the life of the widow, holding the body of the estate in their hands as executors or trustees merely for the purpose of division to the remaindermen. We think, therefore, the construction given to the will by the learned surrogate was erroneous. Inasmuch as a further hearing must be had in the Surrogate’s Court, we deem it unnecessary to pass upon several minor questions discussed in the argument before us.

The decree of the surrogate of Oswego county must be reversed ■and a new hearing ordered in that court.