In re Albertson

• Decision Date: 16 April 1889
• Citation: 113 N.Y. 434,21 N.E. 117
• Parties: In re ALBERTSON et al.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 434

21 N.E. 117

In re ALBERTSON et al.¹

Court of Appeals of New York.

April 16, 1889.

Appeal from supreme court, general term, Second department.

Testator died June 5, 1878, leaving his widow, Sarah, him surviving, but no descendants. His widow, Sarah, died August 2, 1881. By testator's will a trust was created for the benefit of his widow, during her life, in the whole of his estate, after payment of his debts, etc. The fourth or residuary clause is as follows, viz.. ‘ Fourth. All the rest, residue, and remainder of my estate, real and personal, which I shall own at my death, or of which I shall die seised or possessed, or to which at my death I shall be in any way entitled, and wheresoever situated, I give, devise, and bequeath unto my friends Benjamin W. Albertson and Garret J. Garretson, and the survivor of them, and the successors of such survivor; in trust, nevertheless, for them, during the life-time of my wife, Sarah De Bevoise, to collect and receive the rents, issues, income, and profits thereof, and to apply such rents, issues, and incomes and profits to the sole use of my said wife, Sarah, during her life; and upon the further trust, upon the death of my said wife, Sarah, to pay, out of the capital of said trustestate, the legacies mentioned in the third article of this, my will, or such of said legacies as may not then have lapsed from any cause, and to convey, transfer, and distribute the remainder of the capital of said trust-estate, or the securities in which the same may then be invested, to, between, and among my niece, Eveline De Bevoise Boice, wife of Richard Boice, and my nephews Charles R. Hegeman, Rem. Hegeman, and James Gilbert De Bevoise, and the issue of any of my said last four named niece or nephews who may have died before my said wife, and left issue who shall survive my said wife, in equal shares or proportions, per stirpes, and not per capita, to be thenceforth had and held by them, their heirs, executors, administrators, and assigns, forever. * * *’ By the fifth paragraph testator empowers ‘the trustees of this, my will, appointed of the estate devised and bequeathed as aforesaid, for the use and benefit of my wife, Sarah, during her life, to sell the whole or any part of the real estate belonging to such trust-estate. * * * It is my will, and I do hereby direct, that the proceeds of such sales, and the securities in which such proceeds may be invested, shall be held and managed by the said trustees, or their successors, upon the same trust, and for the same purposes, and be disposed of in the same manner, as such real property would, in case of no such sale, by the force of the previous provisions of this, my will.’ By a further paragraph, a provision is made respecting his farm, which reads as follows, viz.: ‘ Sixth. It is my will that my said trustees shall not sell my farm in the town of Jamaica, whereon I now reside, under the power of sale hereinbefore given to them, during the life-time of my said wife, Sarah, except with her consent, to be signified by here joining in the execution of a deed of conveyance of the same, and that if my said wife shall so desire she be permitted to use and occupy said farm free of rent, so long as she shall live; and I direct that my said trustees shall, during the time that my said wife so use and occupy said farm, pay out of my estate, from time to time, as the same shall accrue or become necessary, all taxes upon said farm, and the expenses of keeping the buildings thereon in proper repair, and all other expenses attending the proper upholding and maintaining of the same; and also the interest upon any and all mortgages which shall be upon said farm at the time of my death. * * *’ During the widow's life-time the testator's executors paid the interest accruing upon a mortgage covering the farm, and the insurance premiums and the taxes, etc., on the same, from the income of the estate in their hands. Upon their accounting objection was made to such portions of the account as covered such charges to the income, by the executors of the widow, Sarah, on the ground that these items were chargeable to the capital of the estate. The surrogate sustained the objection, and held the payments in question chargeable to capital account. The general term have reversed the surrogate, and have held the payments chargeable to income, and from their decision this appeal is taken.

WILLS-CONSTRUCTION.

Testator, by the fourth clause of his will, gave his residuary estate in trust to pay the income to his wife for life, and upon her death to pay ‘out of the capital of said trust-estate’ certain legacies, and to distribute the remainder to certain legatees named. Clause 5 authorized the trustees of the estate, so ...