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App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

accumulated income of preceding years as may then be in their hands, shall be insufficient to enable the said trustees to pay to the said defendant Sarah Griswold Spencer the said annual sum of twenty five thousand dollars in gold, it will be right and proper for the said trustees to apply to that purpose any portion of the capital of the said trust estate, so that the said defendant Sarah Griswold Spencer shall, in any event, receive the sum of twenty-five thousand dollars in gold annually, is hereby answered in the negative, and it is hereby adjudged that the said plaintiffs, as such trustees, have no power or authority, under and by virtue of the said will, to retain any portion of the net income of said trust estate in excess of twentyfive thousand dollars in gold annually, in order to provide for any possible future deficiency in such net income, or to apply to make up any deficiency of said net income below the said annual sum of twenty-five thousand dollars in gold any portion of the capital of the said trust estate ;" and also from that part of said judgment which provides as follows: "And it is further adjudged, in answer to the question of construction of the will of said Lorillard Spencer, deceased, presented by the complaint herein, in respect to the present ownership of the irregular tract of land situated between One Hundred and Fifty-ninth street, the extension of the centre line of One Hundred and Fifty-eighth street, the Croton aqueduct and St. Nicholas avenue; and, also, the two lots of land situated in the village of West Farms, in the county of Westchester and State of New York, both of which parcels of land are mentioned in the said referee's report; that the title to, and ownership of, each and all of said parcels of land is now vested in equal undivided one-fourth shares in the plaintiffs William Augustus Spencer and Charles G. Spencer, individually; the plaintiffs William Augustus Spencer, Charles G. Spencer and Wolcott G. Lane, as trustees under the will of said Lorillard Spencer, deceased, for the benefit of Eleanora L. S. Cenci and remaindermen, and the said William Augustus Spencer, Charles G. Spencer and Wolcott G. Lane, as trustees under the will of said Lorillard Spencer, deceased, for the benefit of Lorillard Spencer and Caroline S. Spencer, his wife, and remaindermen; that the said parcels of land are subject to the execution by the plaintiffs William Augustus Spencer and Charles G. Spencer, as surviving executors of the will of said Lorillard Spencer, deceased, of the

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

powers of sale and allotment by said will given to the executors thereof, and that said surviving executors have also power and authority to collect and receive any award or compensation that may be made for the taking of, or for damages to, any real property of said estate taken, or which may hereafter be taken, for public use;" also from that part of said judgment which provides as follows: "And it is further adjudged that, out of the capital and income belonging to the estate of the said Lorillard Spencer, deceased, remaining in the hands of the plaintiffs William Augustus Spencer and Charles G. Spencer, as surviving executors of said will, the said plaintiffs William Augustus Spencer and Charles G. Spencer pay to the defendant J. Frederic Kernochan, as administrator of the goods, chattels and credits which were of James P. Kernochan, deceased, the amount of commissions upon capital and income of the estate of said Lorillard Spencer, deceased, to which he is entitled, as hereinbefore adjudged, and thereupon divide the capital and income then remaining in their hands into four equal shares, and pay and deliver one of such equal shares to the plaintiff William Augustus Spencer, individually; one other of such shares to the plaintiff Charles G. Spencer, individually; one other of such shares to the plaintiffs William Augustus Spencer, Charles G. Spencer and Wolcott G. Lane, as trustees under the will of said Lorillard Spencer, deceased, for the benefit of Eleanora L. S. Cenci and remaindermen, and the remaining one of such shares to the plaintiffs William Augustus Spencer, Charles G. Spencer and Wolcott G. Lane, as trustees under the will of said Lorillard Spencer, deceased, for the benefit of Lorillard Spencer and Caroline S. Spencer, his wife, and remaindermen.”

Also an appeal by the defendant J. Frederic Kernochan, as administrator, etc., of James P. Kernochan, deceased, from so much of said judgment as adjudges "that the said James P. Kernochan became and his estate is equitably estopped from claiming any commissions upon income of the said several trust estates during each complete fiscal year of his service as trustee, and that the said James P. Kernochan, as administrator of the goods, chattels and credits which were of said James P. Kernochan, deceased, is not entitled to commissions, as for paying out so much of the capital of the trust estate held for the benefit of Lorillard Spencer and Caroline S. Spencer, his wife, and remaindermen, as was expended by the

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

trustees thereof in the erection of a new building upon the lots of land known by the street numbers 129, 131 and 133 Worth street in the city of New York."

This appeal was transferred from the first department to the second department.

J. Frederic Kernochan, for himself, as administrator of James P. Kernochan, appellant.

John E. Parsons, for Sarah Griswold Spencer, appellant and respondent.

John L. Cadwalader, for Lorillard Spencer and another, respondents.

Howard C. Tracy, for plaintiffs, respondents.

J. Mayhew Wainwright, for guardian ad litem, respondent.
Henry H. Man, for Eleanora L. S. Cenci, respondent.

CULLEN, J.:

This action was brought by the trustees under the will of Lorillard Spencer, deceased, for a construction of certain parts of said will and for an accounting. The only questions raised on this appeal are the rights of Sarah G. Spencer, the widow of the testator, under the trust created in her favor, and the claim of J. Frederic Kernochan, as administrator of James P. Kernochan, a deceased trustee under the will, to commissions.

The trust in favor of Mrs. Spencer was created by the following clause of the will: "Second. If my beloved wife, Sarah Griswold Spencer, survives me, I direct and empower my said executors forthwith, upon my decease, to set apart a certain portion of my real estate which shall be amply sufficient, in their judgment, to yield at all times a yearly net income of twenty-five thousand ($25,000) dollars in gold, which said portion I hereby give and devise to my said executors, in trust, however, to let, lease, manage and improve and receive the rents, issues and profits thereof, and to pay the net income thereof up to twenty-five thousand dollars ($25,000) per annum in gold, or its equivalent, to my said beloved wife during her life in equal quarterly payments against her receipt in duplicate,

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

and the balance, if any, of said net income to the persons, share and share alike, per stirpes and not per capita, who shall, during her life, be presumptively entitled to take the portion so held in trust, on expiration of said trust, as hereinafter in this section provided And I declare that the provision in this section made for my beloved wife is intended to be in lieu and bar of all dower and thirds, and all other claims on her part, against my estate." Under this instruction the executors set apart certain real property of the testator which they deemed reasonably certain to produce at all times an annual income in excess of $25,000. The testator died in January, 1858, and the real estate was set aside for the trust in favor of the widow in November of that year. During the first five or six years the trust estate produced a net annual income not only sufficient to pay the widow's annuity of $25,000, but to create in addition thereto an annual surplus of about $5,000. During the years ending May 1, 1896, and May 1, 1897, the net income was insufficient to pay the widow's annuity, the aggregate deficiency during those two years being about $2,000. At the commencement of the action the trustees had divided all of the surplus income among the parties entitled thereto, except the sum of about $4,000 which they had on hand. The widow claimed before the referee that the trustees should be directed to retain any surplus of income that they might receive for the purpose of applying the same to making good any deficiency of income that might thereafter arise; and she also claimed that her annuity should be made good, if necessary, out of the principal or corpus of the trust estate. Both these claims the referee decided adversely to the widow.

It goes without saying that the provision made to a widow in lieu of dower is to be construed most favorably to her. Such a provision is not a mere gratuity, nor only dependent on moral claims for its support. It is given for a valid consideration, the release of dower. In the present case, too, it is apparent that the dominant intention of the testator was that the widow should receive $25,000 in gold annually. Therefore, the court, to carry out the intention of the testator and the rule of law, should construe this provision of the will beneficially to the widow so far as possible. But while we may resolve every doubtful question or ambiguous expression in favor of the widow, there is a limit beyond which

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App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

we cannot go. We cannot make a new will for the testator, even if we believe that had he foreseen the contingency which has arisen he would have changed his testamentary dispositions, nor can we pervert the meaning of the plain language of his will. There is no ground on which we can hold that the provision in favor of the widow is a demonstrative legacy of $25,000 a year, and, therefore, the decision in Pierrepont v. Edwards (25 N. Y. 128) has no application here. The testator has not given his widow $25,000 a year at all. He has merely given her the net rents and profits of a trust estate up to the sum of $25,000 per annum. The will seems to have been very carefully drawn by some one who knew thoroughly the law of this State. Had the draftsman had the case of Pierrepont v. Edwards before him, and his effort been directed especially to take the present will without the rule of that case, we do not see how he could have adopted language better fitted for the purpose unless he had said bluntly "Pierrepont v. Edwards shall not apply to this will." In Delaney v. Van Aulen (84 N. Y. 16, 21), speaking of the question whether an annuity given out of the rents and profits could be paid out of the corpus of the estate Judge FOLGER said: "Indeed, it may now be said that there is no principal whatever involved in these cases, save to ascertain what is the testator's intention, and to carry that intention into effect." But it must be remembered that in that case the gift was of an annuity and the executors were directed to pay the legatee a specific sum per year. In this case, though we in our previous discussion have used the term annuity as a matter of convenience, there is in fact no annuity, but a gift of rents and profits up to a specified This seems so plain to us as to forbid elaboration, and we are of opinion that the decision of the learned referee in this respect

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was correct.

The determination of the other question, as to the right or duty of the trustees to retain the surplus of good years to guard against a deficiency in the income of bad years, is involved in more doubt. The direction of the will is not to pay the annual rents and profits of each year up to the sum of $25,000 to the widow, but to pay her the net income up to $25,000 a year during her life, payment to be made quarterly. The intent of the testator was that during her life APP. DIV.- VOL. XXXVIII.

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