In re the Construction of the Will of Wagner

This is an application for construction of the will instituted on the petition of the administrators of the estate of the decedent’s widow. In article VII (b) of his will the testator left the following instructions concerning the payments to be made to his wife under the trust he had established for her benefit. He there said: “In the event the income to which my wife is entitled under this trust shall be less than $8,000 in any year, then I authorize, empower and direct my Trustees to pay the deficiency out of the corpus to her ’ ’.

The widow died on July 28, 1958. The terminal date of the fiscal year employed by the trustees in the administration of the trust was January 31. It is the position of the petitioners that their intestate’s estate is- entitled to a prorata share of the $8,000 annual payment required under the will for the period commencing on February 1, 1958 and terminating on the date of the death of the life beneficiary. The court concurs in this conclusion which is clearly the mandate of the will and also *423consonant with the provisions of section 204 of the Surrogate’s Court Act directing the apportionment of ‘ ‘ all rents * * * and all annuities, dividends and other payments of every description ” between the holders of successive estates. (Matter of Booth, 105 N. Y. S. 2d 73.)

Submit decree on notice construing the will in accordance with the ruling here made.