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the widow should receive in the aggregate an amount equal to the multiple of $25,000 by the number of years she might live, so far as the rents and profits of the trust estate should produce that sum. In our opinion the terms of the will itself will justify this interpretation; and even if the interpretation be doubtful, the doubt should, under the rule already stated, be resolved in favor of the widow. We do not look upon the direction to divide the surplus among the persons presumptively entitled to the corpus of the trust estate on the expiration of the trust as evidencing any intent on the part of the testator to make such persons the special objects of his bounty. The provision of the will disposes of the surplus in exactly the same manner as the statute would have disposed of it had there been no such provision in the will. Its terms are borrowed from the statute, and its insertion was doubtless the mere desire of a careful lawyer to avoid even the appearance of intestacy. We think it clear that in case of deficiency in any year, such deficiency should be made good out of the surplus of succeeding years. (Stewart v. Chambers, 2 Sandf. Ch. 382; Cochrane v. Walker, 4 Dem. 164; Matter of Chauncey, 119 N. Y. 77.) The learned counsel for the widow contends that the principle of the cases cited, that the surplus of one year can be applied to the deficiency of a preceding year, logically requires or justifies the retention of such surplus as security against deficiencies that may occur in the future. If the right to retain the surplus depends solely on the will of the testator, we are not prepared to deny the correctness of this proposition, at least within limits. But we are here met with the statutory law of this State on the subject of accumulations. All directions for accumulations of rents and profits of real property are void, except during the minority of an infant and for his benefit. (Real Prop. Law [Laws of 1896, chap. 547], § 51.) In Phelps' Executor v. Pond (23 N. Y. 69) the testator placed the bulk of his estate in trust, and gave legacies payable in the future in such a manner that it was apparent that he anticipated the payment of those legacies out of the income. It was held that the executors could not retain or accumulate surplus income for the purpose of paying those legacies, but that such surplus every year must be distributed among the persons entitled to it under the statute. We assume that there is a limit beyond which the doctrine forbidding accumulations cannot be carried. We do not suppose that

App. Div.]


the very day income is received it must be paid over to, or distributed among, the beneficiaries, and that no amount can be retained for any time, however short, with which to pay a charge certain to accrue in the immediate future. In this city taxes are payable toward the end of the year and they always equal a large portion of the rent of real estate. Any prudent trustee would retain a certain part of the income received during the early portion of the year to meet the charge that was sure to come at its end. The same is true of repairs; the cost of a repair which it was reasonably certain would become necessary in a short time might well be apportioned over some period of time as depreciation of the property, and a fund might be accumulated to defray the cost when it would be incurred. Some discretion must be left to the trustee in such matters, and his action, fairly taken in good faith in the retention of rents for the purposes indicated, would not be held to create accumulations against the statute. But no such case is presented here. The evidence taken by the referee is not before us on this appeal, the appeal having been taken on the judgment roll. The only question we have before us on this record is the broad one, whether the trustees have the right to retain present surplus against the possibility of future deficiency. Under the statute and the authority of the Phelps case, the trustees could not retain and accumulate the income of the present year to pay a legacy of $25,000 to the widow ten years hence. We cannot see that they have any greater right to retain the surplus to meet a possible deficiency in such a legacy after the application of the income of that year.

The facts relating to the claim of the late Mr. Kernochan for commissions are briefly these: Annually he, with his associates, the other trustees, rendered to the beneficiaries an account of the incomes of their respective trusts for the year, and paid over to them the whole net income as it appeared by those accounts. The learned referee allowed the estate of Mr. Kernochan one-half commissions. on the personalty included in the corpus of the trusts, but denied to him commissions on the annual income received and paid over except during the portion of the year in which Mr. Kernochan died. He held that the deceased trustee, by failing to retain his commissions and by paying over the whole income to his cestui que trust, had waived all claims to commissions on that income. The learned


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counsel for the estate of the deceased trustee contends that this ruling is erroneous. He asserts that the original rule was that trustees could only take their commissions when they were fixed by judicial decree (Wheelright v. Wheelright, 2 Redf. 501); that though this rule has been relaxed in favor of the trustee so that where he annually accounts to his cestui que trust for the income of the year and pays it over he may take commissions without judicial order, still he has the right to await the settlement of his accounts and the judg ment of the court before he makes his claim for commissions. We entirely agree to this proposition, but it does not help this appellant. The difficulty in his case is not that he did not take his commissions each year from the income, but that he paid over the whole income to the beneficiary. He was not put to the alternative of either taking his commissions or paying their amount to the beneficiary; there was a third course open to him that was to retain the amount of his commissions in the trust. The income was the sole fund from which the trustee's commissions were payable; he could not by paying over to the cestui que trust the amount of the commissions in one year create a charge or lien on the income of the beneficiary in future years. The interest of the beneficiary in the rents and profits was, by the express terms of the statute, incapable of anticipation or assignment; and neither the acts of the trustees or of the cestui que trust could avoid this provision. We do not mean to say that this rule is to be carried so far as to exclude the possibility of any unintentional error resulting in an overpayment in one year being corrected in the next. But in this case the trustees have for nine successive years rendered their accounts to the beneficiaries without claim for commissions, and have paid over the whole net income. By this course they have lost the right to commissions. (Hancox v. Meeker, 95 N. Y. 528.)

A further claim is made by the counsel for the deceased trustee that he is entitled to full commissions on some $60,000 of personalty which was applied to the improvement of the real estate in the trust. He concedes the general rule that a mere change in the investment of the corpus of the trust estate is not a paying out so as to entitle the trustee to commission on such investment. He contends, however, that a different rule applies here, because the personalty has been applied to the improvement of the real estate. He argues


that as the real estate will go to the remaindermen under the will, the trustees can get no commissions on the principal or corpus of the estate at the expiration of the trust term; and that, therefore, they must be entitled to such commissions when the personalty was applied to the realty, or forever lose them. We are not willing to concede that, at the expiration of the trust term, the trustees might not have a lien on the real estate for their commissions on the personalty that had gone into the real estate. Certainly they would be entitled to take such commissions from any other personalty belonging to the corpus of the trust. However that may be, in this case the trustees are empowered to make sale of the realty. If they should do so, at the end of the trust they would receive full commissions on the sum realized on the sale, which would include the amount of any improvements which had been made on the property from the personalty. We think, therefore, that in this case at least the trustees were not entitled to this commission.

The judgment appealed from should be affirmed, with costs to all parties to be paid out of the estate.

All concurred.

Judgment affirmed, with costs to all parties payable out of the



Mandamus to compel a water company to furnish a citizen with pure water at reasonable rates — what allegations are sufficient to authorize the issue of an alternative writ of mandamus.

A writ of mandamus will issue, on the relation of an inhabitant of a city, to com. pel a water company, having a contract with the city to supply the inhabitants thereof with pure water, to furnish the same at reasonable rates, and he is not obliged to first pay the charges of the water company and then seek redress for his grievances in an action at law.

To entitle the relator to an alternative writ it is sufficient that his petition allege that the water company failed to furnish the relator and other inhabitants of the city with pure water; that it charged exorbitant prices for the water furnished;

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[Vol. 38. that instead of charging for the water according to the quantity consumed, it fixed its charges according to the number of taps, faucets or openings in the different buildings, and that it required payment of its water charges in advance.

The manner in which the charge is computed by taps, faucets or openings and the requirement of payment in advance are but details of the charge that the water company refuses to furnish water on reasonable terms.

APPEAL by the defendant, The New York Suburban Water Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of November, 1898, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant's demurrer to the alternative writ of mandamus issued in the action.

Abram J. Dittenhoefer [I. M. Dittenhoefer with him on the brief], for the appellant.

Roger M. Sherman, for the respondent.


The appellant is a water company, incorporated under the general statute, and under a contract with the city of Mount Vernon to furnish a supply of water to the inhabitants of that city. The relator, an inhabitant of Mount Vernon, on a complaint that the appellant failed to furnish him and the other inhabitants of the city with pure water; that it charged exorbitant prices for the water furnished; that, instead of charging for the water according to the quantity consumed, it fixed its charges according to the number of taps, faucets or openings in the different buildings, and that it required payment of its water charges in advance, together with other grievances unnecessary to enumerate, obtained an alternative writ of mandamus directed to the appellant requiring it, among other things, to furnish the relator pure water at a reasonable rate, to be fixed according to the quantity consumed and not to be paid in advance, or to show cause before the court to the contrary. Under section 2076, Code of Civil Procedure, the appellant demurred to these grievances as insufficient to authorize the issue of the writ. From the judgment of the Special Term, overruling the demurrer, this appeal is taken.

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