Bolton v. De Peyster

25 Barb. 539 | N.Y. Sup. Ct. | 1857

By the Court, Davies, J.

A perusal of this will must carry with it the conviction that the first object of the testator’s bounty and solicitude ivas his wife. Her comfortable support for life, without the possibility of accident, ivas his chief concern. It is apparent, we think, that he regarded his children, in comparison with ivhat he deemed due to his wife, as secondary objects of his consideration. It would appear from his will, that he had already made some provision for them, and that he gave to his children Louisa and Edward each §5000, “ they having as yet received nothing from me, beyond their educatiofi and support.” From this it might be inferred that the others had received at least an equal amount. Keeping in view therefore, what we think is apparent from the whole tenor of this will, the anxiety of the testator to secure an adequate and comfortable support for his wife during her life, irrespective of any supposed claims of his children, we perceive that she is first to receive out of his estate an annuity of $3000. To secure that, a sufficient portion of his estate ay as to be sold, and the whole if necessary, and the proceeds to the extent of §60,000 invested in bonds and mortgages, or in stocks of the United States or of the state of He ay York, and from such interest and income * the annuity was to be paid. The testator supposed that such fund might produce more than sufficient to pay the annuity, and he directs his executors to re-invest the surplus and accumulate the same during the life of his Avife. After the death of his Avife, he directs that one-eighth part of said sum of §60,000 Avith the accumulations thereof, be disposed of by his wife, by appointment to and among his children and grandchildren, and in default of such appointment the same to be disposed of as he directs as to the other seven-eighths parts of said fund. Of the other seven-eighths parts of said fund after the death of his wife he gives one equal part to each of his seven children, and in case either of his children should then be dead leaving issue, the child or children of such child to take the share or part of its or their parent, and if any of his children should have died, leaving no child or. children, then his share was to be divided among his surviving children, and the child or children of any deceased child, per stirpes, and not per capita.

Here we see that the testator, after securing for his wife in the most perfect manner, and in the way best calculated against the possibility of accident, the support which he deemed adequate, his next objects of care and solicitude were the children who might be living at her death, and the grandchildren who had lost their parents. This fund he knew would be adequate for his wife for her life. After that first desire of his heart had been fulfilled, he intended that something should remain to be divided among his children or the children of such as should have deceased. We cannot shut our minds to the conviction that the objects of the testator’s care and bounty were prominently in his mind, and we should do violence to his intentions and the language used by him, if we did not give effect to the one, and due weight to the other. Bearing in mind what we think is apparent from this will, that the testator had made some provision for all his children, and that he was well aware of the vicissitudes of commercial life and' the uncertainty that his children would retain for their support in the evening of life, or for their children, that which might be given to them absolutely, the testator deemed it best in order to secure their enjoyment of at least a portion of his estate, that this was the wisest disposition to make of it. Whether wise or unwise, it is the duty of this court to give to his intentions, when ascertained, their full force and effect. We have no power and we trust no disposition, to make wills for others, and feel that our whole duty is discharged in carrying out fairly and truly the language and true import of those we are called upon to consider.

Assuming, therefore, that this view is correct, and that this fund had been created and the directions of the testator in this regard complied with, how would the rights of the parties to this suit have stood upon the death of Mrs. Jane Lynch, in respect thereto? In default of any appointment by her, Alexander Lynch having died before her, without issue, and Henry Lynch and Dominick Lynch having died, each leaving issue, this fund with its accumulations should have been divided into six equal shares, to one of which the plaintiffs, children of Henry Lynch, would have been entitled; to another sixth part the children of Dominick Lynch; James Lynch to another sixth part; Edward Lynch to another sixth part; Louisa Lynch to another sixth part; and Dominick Lynch Lawrence, in the right of his mother, to another sixth part.

By the revised statutes in reference to powers, it is provided, (1 R. 737, § 126,) that lands embraced in a power to devise shall pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power shall appear, expressly or by necessary implication. A perusal of the will of Jane Lynch shows that it is a disposition of all her real property, and certainly no intent is expressed in the will that it shall not operate as an execution of the power of appointment vested in her as to one-eighth of the property or fund set apart to produce the annuity. Neither can an implication necessarily be derived from the will, that it was not equally the intention of the testatrix that her will should not operate as an execution of the power. It must therefore be determined that the devisee of Jane Lynch took an eighth part of the fund or property thus set aside for the annuity, and the remaining seven-eighths parts, are to be divided into six equal parts, of which the plaintiffs are entitled to an equal part or share ; the children of Dominick Lynch to another equal part or share; James Lynch to another equal part or share; Edward Lynch to another equal part or share; Louisa Lynch, in addition to the one-eighth part which she takes by virtue of the execution of the power of appointment by her mother, another equal part or share; and Dominick Lynch Lawrence, in right of his mother, to another equal part or share.

We come now to the consideration of the question whether there is any fund or portion of the estate of the testator to which these provisions of the will attach and are applicable? It is quite clear that the original design of the testator to convert sufficient of his estate into cash and thereby create a fund of §60,000 was not carried out. If any fund for the production of the annuity wras created, it was a substitution of productive real estate instead of the cash derived from a sale, sufficient to produce and secure the annuity. Such alteration is a mere substitution of one species of property for another. The substitution of a different fund or different property will not per se change the character, of the limitation or disposition, but will be impliedly subject to the same disposition and the same general purpose. (Lorillard v. Coster, 5 Paige, 172.) If therefere it shall be found, on examination, that a fund has been created to supply the place of the money to be raised, it follows that the provisions of the testator’s will, relative to the disposition of the residuum, apply with the same effect to the substituted property, that they would have had if no substitution had taken place.

It is contended on the part of some of the defendants that no such fund has been created; that if the executors violated or neglected their duty in not creating it, they are liable for a breach of trust; and they not being made parties to this suit, there is a defect of parties, and the complaint must be dismissed. In the view we take of this case, it will be seen that we do not think there has been any breach of trust on the part of the executors ; that consequently no claim could be properly made against them, and that so far as they are concerned, there is no want of proper parties.

The testator directed that after the payment of his debts, the legacies to his two children, and after the investment of the §60,000 fund, all the residue of his estate, real and personal, should be divided into eight equal parts, and he gives one share to his wife, and another share to each of his children absolutely. We see by the language used by the testator, and the disposition made of this fund after the death of his wife, that he did not embrace it in the residue of his estate given absolutely to his wife and children. In this fund his wife was to have no share, except the annuity to the extent of §3000 for her life. After her death it was to go to his surviving children or grandchildren.

It seems to us, therefore, that it is the manifest and apparent intent of the testator, throughout the whole scope of his will, to set apart this fund for a peculiar purpose, and after that was fulfilled, to make a disposition of it different from that which he made as to the other portions of his estate. New objects of his bounty were to be provided for, and those perhaps who he deemed had peculiar claims to his attention and sympathy. He chose to make the distinction, and it is not for us to say it was unnatural or unwise.

The testator, foreseeing, or as one of the counsel on the argument felicitously expressed it, foreboding that a sale of his real estate to raise the sum of $60,000 in cash, might produce a great sacrifice of property, and materially injure his children, who were to take the residue, declares that his intention in directing the above provision of $60,000 to secure the annuity, was to provide beyond the possibility of accident for the punctual payment of the annuity of $3000 a year to his wife during her life, and being aware that in order to raise tha.t sum at once, a sacrifice might be necessary, he then directs that if his wife should be willing to accept certain parts of his real estate which were then productive, instead of the annuity, such an arrangement might be made, and might be beneficial. What was the object of this contemplated change or substitution 1 To prevent a sacrifice by a sale at once, of sufficient to raise $60,000. When that fund was raised it was to be invested, so as to be made productive. It was the product or income to which the testator looked. That was to furnish the annuity, and he declared that if his wife was willing to accept in lieu of this fund, real estate then productive, in other words yielding an income, instead of the income to be obtained from the money invested, she might do so. The product of the real estate was substituted for the interest or income of the $60,000 invested. She was to have, in any and all evenis, $3000 a year during her life, and the parties never contemplated that she was to have any more or less. We see by the decree made in the chancery suit, that the real estate conveyed to the trustees wife subject to the payment of the annuity of $3000 a year. It appears also from the testimony of Roberts, that the annuity of $3000 a year was paid to Mrs. Lynch out of the proceeds of the Rome estate. All the parties have therefore properly treated this estate as that from which the annuity was to be paid, or that from which it was to be produced. Not that set aside to Mrs. Lynch “ instead of the annuity.” The testator also declared that if this change,- or substitution of productive real estate, to produce the annuity, instead of a sale to raise the $60,000, took place, it must be made by the consent of all the parties interested. We think that substitution or change was made by and with the consent of all the proper parties and those who were interested, by the suit in chancery above referred to; and that the fund or property set aside to produce that annuity, also for the shares of Mrs. Lynch and her three children, in the residuum of the estate, was properly set aside for those purposes, and we see no difficulty in now dealing with this whole fund to carry out the will of the testator and correctly adjust all the rights and equities of all the parties interested therein.

By reference to the testator’s will it will be seen that if this arrangement for the substitution of productive real estate should be made, in lieu of the sale of other property and the creation and investment of the fund of $60,000, then the residue of his estate might be divided as above. It was the residue to be divided, not this real estate thus set aside, with the residue. If the money had been raised, then the residue of the estate, excluding the fund, was to be divided and distributed. The same language is used in reference to the substitution of productive real estate for the money, and the same consequence results in one case as in the other. We have seen that if the money had been raised, then the residuum was to be divided, one-eighth to the widow and one-eighth to each of the children, absolutely. If the substitution took place then what remained after setting aside sufficient real estate to produce the annuity, was to be divided “ as abovethat is, in the same manner, and in the like proportions as if no such substitution or change had taken place.

The directions of the decree in chancery were that this fund or portion of the estate, agreed upon by the parties to that suit to he ample and adequate, not only to raise the annuity .to be paid to Mrs Lynch during her life, but also to place herself and her three children on an equality with the four sons in the distribution of the residue of the estate, should be held for the benefit of the said Jane Lynch, Louisa Lynch and James A. Hamilton, as assignee of Dominick Lynch and Dominick Lynch Lawrence, share and share alike. Assuming that we are correct in the view that a portion of this real estate was set aside in fact fo produce sufficient to secure the annuity, then all that remained should have been divided between Mrs. Lynch and her children. But instead of doing this, that which was relied upon to produce the annuity was mingled with the share to which Mrs. Lynch and her three children were entitled, and the separation not having been made when it should have been, it must he made now. Mrs. Lynch and her three children, as to the residue of the estate, after setting aside that necessary to produce the annuity, were entitled to be placed on an equality with the four sons, James, Henry, Alexander and Edward. At the division in 1831, certain portions were assigned to the four sons. Amounts equal iii value should have been given to Mrs Lynch and her three other children, and we can see no good reason why an entire separation and division should not have been made then. Ho embarrassment would then have ensued, and this litigation would never have arisen, if the other portions of the testator’s will had been adhered to; that is, a separation of' that portion of the estate conveyed to the trustees, under the decree in chancery, so that it might distinctly' have appeared what was retained as needful to secure the annuity and what remained undivided constituting the shares of Mrs. Lynch and her three children.

She and they were entitled to have received on the division of the residue of the estate shares of equal value to those assigned and transferred to the four sons. All should have been placed on an equality. We think that it is safe to assume that sufficient of the estate was retained and conveyed to the trustees to have secured the annuity, and to have placed Mrs, Lynch and her three children on an equality with .her four sons. A separation must be made, setting aside sufficient to place Mrs. Lynch and the three children on the same footing with the sons, and that division must be made as of 1831, at the time the sons received their share. Whatever remained of the estate must be deemed as retained to satisfy the annuity, and after it has fulfilled that office, it must be divided in accordance with the terms of the will, applicable to that fund. Upon these principles the plaintiffs would be entitled to one-sixth part of seven-eighths thereof, with the accumulations upon the death of Mrs. Lynch, deducting therefrom the annuity paid to her.

The judgment of the special term must be reversed and a judgment entered declaring the rights of the parties upon the principles of this opinion. A reference must be had, to ascertain the value of the shares transferred to James, Henry, Alexander and Edward, in 1831, and to allot and set off as of that date to Louisa Lynch, (from the property conveyed to the trustees pursuant to the decree in chancery,) in her own right and as devisee of her mother, two shares, each equal in value to the shares respectively conveyed to each son, and to allot and set off to the children of Dominick Lynch, another share of equal value to that of the shares respectively assigned to the other sons ; and that the same allotment be made to Dominick Lynch Lawrence; and that of the residue of the estate so conveyed and held by the said trustees, with all the accumulations thereof, deducting the annuity paid to the said Jane Lynch during her life, the plaintiffs were entitled upon her death to the one equal sixth part of seven-eighths, thereof.

The costs of all the parties except those of the defendant De Peyster, to abide the further order of the court. His costs and counsel fees are to be paid out of the funds in the hands of the surviving trustee.

Mitchell, P. J. Dominick Lynch made his will in 1823, and died in 1825, possessed of a large real estate, but not of sufficient personal estate to pay his debts and to raise two legacies of $5000 each. He gave specific articles to his wife, and then devised all the rest of his estate, real and personal, to trustees, in trust for the purposes hereinafter named. These were active trusts, and gave the legal title to the trustees. The trusts were, 1. To pay his debts; 2. To pay his widow an annuity of §3000 ; 3. To pay two legacies of §5000„each to each of his two children Louisa and Edward; 4. To raise the sum of §60,000 and invest it in mortgages, dec., and out of the income to pay the said annuity; and if the income should be more than enough for that purpose, to accumulate the surplus during her life. Then in the next item he says, “ after the payment of my debts and of the said legacies, and after the said investment of §60,000 shall be made, I direct that all the residue of my estate real and personal shall be divided into eight equal partsand he gives, absolutely, one-eighth to his widow and her heirs, and one-eighth to each child of his and the heirs of such child ; he having seven children then living. This gave vested interests in fee in that residue (whatever it meant) to the -widow and each child'—-vested at the moment of the testator’s death, and liable to pass to the issue of any child who should afterwards die, except by descent, devise or conveyance from such child. The grandchildren took no interest as “ purchasers” or “persones designates” in this residue. In the next item the testator directs that after the death of his wife “ the one equal eighth part of the said sum of §60,000, with its accumulations, should be disposed of among any of his children or grandchildren as his wife should by will appoint; and in default of a full appointment it was to be divided “in the manner with” the rest of the said sum. He then gives one of the other seven-eighths, after the death of his wife, to each of his seven children; but if either child died before the testator’s wife, the share of that child was to go to his child, if any, who should survive the widow. And if either child died before the widow, leaving no child, his or her share was to be divided among "the children of the testator who should survive the widow, and the children surviving the widow, of any deceased child, per stirpes. By this provision a very different disposition of the §60,000 was made from that which was made in the previous item, of the residue there spoken of. That (as was seen) passed a present, immediate absolute estate in fee to each child and to the widow. This, although it passed a present interest in a reversion to each child, yet made it liable to be defeated by his death before the widow, and thus postponed the absolute vesting of the title to any part of the reversion which it disposed of, until the death of the widow, and then gave it, not to any child of the testator who should die before the widow,.but directly to the children of such child, if any, and if none, then to brothers and sisters surviving the widow, or the children so surviving of any deceased brother or sister. This shows that by the term “ residue ” in the previous item, was not included the reversionary interest in the $60,000, but that part of his estate was meant which remained, exclusive of the $60,000. He regarded the investment of the $60,000 in the same light as the payment of his debts and of the legacies. He uses the same term as to each—“ after the payment of my debts and of the said legacies, and after the said investment of $60,000 shall be made, I direct that all the residue, &c. be divided.” The debts and the legacies were to be first taken out of the estate before the residue was to arise. The $60,000 was likewise to be first taken out, and the difference only was the residue; especially as the income and the capital of that $60,000 were specifically disposed of, in a manner different from that residue. The investment was thus to be as a payment.

The testator, after giving various powers and directions to his executors, towards the close of the will, proceeds with the part which more directly causes the present controversy. He says, “ My intention in directing the before mentioned investment of $60,000 is to provide, beyond the possibility of accident, for the punctual payment of the annuity to my dear wife during her Ufe. I am aware that in order to raise this sum at once, a sacrifice may be necessary. Should, therefore, my wife be willing to accept, during her life, of certain parts of my real estate, which are now productive, instead of the annuity, such an arrangement may be made, and may be beneficial, and the residue of the estate may then be divided as above directed. But nevertheless, if any arrangement or disposition of my property be made, different from that above mentioned, it must be by consent of all parties interested.”

The testator does not give his wife a right to extinguish the fund out of which the annuity was to arise, by taking a sum in gross which should be in lieu of her interest in that fund, and should make the fund or its equivalent unnecessary. But he gives her an election coextensive exactly with her right in the proposed fund; that is, “ to accept during her life, of certain parts of his real estate, instead of the annuity.” It was to accept of real estate during her life, and not lands in fee equal to the value of her life estate in the annuity; to accept the real estate not in lieu of the capital fund which was to raise the annuity, but in lieu only of that which was to belong to her “ instead of her annuity.” To carry out the intention thus expressed, real estate in fee was first to be 'selected, and the widow was then (if she would) to accept it during her life only, instead of the annuity. This selection of real estate was to dispense with the investment, and was to be in place of it. The testator gave the election to his wife, not with a view to change any disposition of his estate which he had previously made, or to cut off or change the estates of any for whom he had before provided, but as he declares, only to prevent the sacrifice which might be necessary in order to raise this sum (the $60,000) at once, and to secure the punctual payment of the annuity to his wife. He connects, also, the substitution of the real estate with the investment of the $60,000, by introducing the subject with the declaration as to what his intention was in directing the before mentioned investment of $60,000. There is no express declaration that the $60,000 was not to be invested, even if she should accept real estate for life; but there is an implied declaration that it shall not be raised if its equivalent is raised. That equivalent would be so only if it was preserved for the same purposes for which the fund was to be raised. The testator, after thus allowing his wife to accept certain parts of his real estate for life, instead of the annuity, says “ the residue■ of the estate may then be divided as above directed.” This was a division to be made in the lifetime of his wife, and he had directed but one division to be made during her life, and that was of a residue exclusive of the $60,000. He had thus (as has been said in another case on wills) become his own lexicographer; he had defined what he meant by the “ residue of my estate” or “ the residue of the estate” as connected with this investment or with the fee simplé estate which wras to be its equivalent; it was that which remained after excluding the capital or the fee simple. This best corresponds also with the exact meaning of the words “ the residue of the estate may then be divided as above directed.” What does “ above directed” refer to 7 or what does “ directed” agree with 7 It is the residue; then this residue is to be divided as it is above directed to be divided ; and the residue above directed to be divided does not include the capital from which the annuity was to arise ; so neither does this residue include the reversionary interest in the lands in which the widow was to have a life estate.

What, however, waste be the effect of this substitution? It was to supersede that in whose place it was to come, and the rights of all parties were to be in the land as otherwise they would have been in the moneyed fund. For this reason the testator required that if made “ it must be by the consent of all parties interested thus securing the watchfulness of self-interest in the selection of the lands. The children of the testator had a present interest in the fund or its substitute, but liable to be defeated in case of their death before the death of the widow. It was such an interest, that they (being certainly designated) could dispose of it by warranty, and their conveyance would be valid if they should survive their mother. As remarked also in an opinion in this case by our lamented associate, Edwards, the selection of the lands was to be made (if ever) in the lifetime of the widow. It might be made the year or the day after the testator’s death, while all the children of the testator were living. The will must therefore have meant by the expression “ the consent of all parties interested,” those who had such interest at the death of the testator ; and that was his children. The testator had created the interest, of all the parties, and for the sake of saving his estate from a sa,orifice and the better securing a support to his wife, which was the great object of his heart, had authorized her to accept a subsituted security in lands, with the consent of all the parties interested. To give any effect to this authority, he must have meant to require the consent of those only who were capable of giving a consent, when he intended the authority to be exercised; and he must have intended to include among those who were interested, only those who when the power was to be exercised should be in existence, not those also who might afterwards come into being. A different construction would utterly defeat one of his great objects.

This view of the will would sustain any appropriation of lands made to provide for the annuity if it should appear that any had been made : whether it were equal or unequal, if it were not fraudulent; and answers the objection of the plaintiffs that the appropriation of the lands was not made with the consent of grandchildren then unborn.

There is no allegation of fraud, in the complaint, either as to the decree obtained in 1831 on the application among others of the father of some of the plaintiffs, or as to any other matter. There is no proof of any ; and there is no reason for imputing any. The omission in the complaint on which that decree was obtained of part of one clause in the will was evidently an accident on the part of the copyist. This may perhaps be more readily .assented to, if it should turn out that no attempt was made in that suit to affect the rights of these plaintiffs. It is necessary now to refer to it.

James Lynch and Henry Lynch had each become embarrassed, and had been compelled to make an assignment of their property. It may be inferred that they wished to have their share of their father’s estate set aside to them in severalty, that they might use it to obtain settlements with their creditors. They had no interest to make their shares either larger or less than they actually were. Their creditors would probably settle on getting all that they had, and would not for less. Their feeling might be, therefore, to give to their own children; certainly not to take from them and give to their brothers and sisters. They accordingly joined with others, in 1829, in filing a bill in chancery against the executors of their father’s will and Dominick Lynch Lawrence, the infant son of a deceased daughter, and the United States district attorney as representing the United States, a creditor of Henry, and prayed for a division of the estate. The parties submitted to the master an agreement for a division, in which all joined, except that the executors only expressed their opinion in its favor, and their willingness to execute it under the direction of the court. The master approved of the agreement, and the court by its decree ratified it. It set apart to James, or his assignee, his separate share; to Alexander his ; to Henry, or his assignee, his ; and to Edward his. The rest of the estate real and personal the agreement and the decree declared “ should be united in one undivided share or interest, subject to the payment of the annuity to Jane Lynch mentioned in the pleadings, and to an annuity to Lewis Sibourd, and to the residue of a debt to the executors of A. H. Lawrence, and to $>4000 to'Alexander Lynch on the death of Sibourd or of Jane Lynch: and also subject to all other claims upon the said estate, including taxes, assessments and other charges against such parts of the estate as were included in the shares of James, Alexander, Edward and Henry, and which accrued prior to the 25th of June, 1829, and thus subject, it was to be for the benefit of Jane Lynch, Louisa Lynch, James A. Hamilton as assignee of Dominick Lynch, and Dominick Lynch Lawrence, share and share alike.

The bill had stated that the widow was willing to consent to an arrangement by which she would dispose of certain parts of said real estate during her life instead of the annuity, and that it would be convenient that the lands now in question, those in the neighborhood of Rome, should remain undivided, and that those who should become interested in those lands should have their interest therein undivided “ and subject to the payment of the annuity to the said Jane Lynch and to the payment of the debts due by the estate.”

They did not, therefore, file their bill to defeat any rights of grandchildren, but simply to obtain their separate shares of the estate. The bill assumed, and all parties probably thought that the widow might elect to have her annuity secured upon lands, and that then it would not be necessary to raise the $60,000. But they did not seek in their complaint, or in the decree, any opinion or decision on that point. They did seek in both, that the annuity for the widow should be charged on the lands now in question, but not that the $60,000 should be charged on them. The decree was made accordingly, and the widow received her annuity of $3000 per annum regularly during her life, out of those lands.

What was the whole effect of the decree ? There were eight persons equally entitled to the estate out of which the sum of $60,000 was to be raised at some time; they supposed that all they were bound to raise was interest on that sum at the rate of 5 per cent per annum, during the life of the widow; they provided fairly for this interest or annuity, and for it only, and made it alone a charge on the lands of four of them; but as the court now hold, the land of each distributee should also have been made subject to pay its one-eighth part of the principal sum of $60,000. Each distributee or his share should now be made to pay that one-eighth and no more. If there may be circumstances which would make the shares of the widow and her three children holding in common with her liable for the whole, they have not been alleged or proved.

The widow was entitled to one-eighth of the estate in fee and she had a power to dispose of the one-eighth of the $60,000 by will to any of her children or grandchildren. She made her will giving all her estate real and personal to her daughter Louisa. By the' revised statutes (1 R. S. 737, § 126,) “ lands embraced in a power to devise shall pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power shall appear, expressly or by implication.” This clause was introduced to put an end to the uncertainties previously existing whether a power was intended in each particular case to be exei> eised or not. It lays down a clear rule, which (I am of opinion) the courts must apply also to personal estate.

One child of the testator died without issue, before the widow. The result would be, that the lands assigned to the widow and her three co-tenants would be liable to pay half of the $60,000 and interest from her death; that her devisee and legatee, Louisa, would be entitled to one-eighth of that half; and that the other seven-eighths of that half would be distributable in equal one-sixth parts to Louisa, and to each of the other surviving children of the testator, and the surviving issue of any deceased child, (per stirpes.) ■ ■

The claimants of the $60,000 would not be entitled to an account of any accumulation of income from the $60,000, beyond the $3000 per annum, as that accumulation was only to take place and the accounting to be made, if the $60,000 had been raised and invested and produced more than $3000 per annum; or lands had been set apart separately to secure the annuity, with the like result. No such fund of $60,000 was raised. No lands were separately set apart for such a purpose.

This is peculiarly just; as the intention of the testator was to raise only the $3000 per annum; and if lands were set apart sufficient for that purpose, that was all that the will required or justified. In thus setting apart lands, there wTould necessarily be some excess beyond, or falling short of, the exact value; and there would afterwards be some appreciation or depreciation in such value. So also there would be some excess or falling short of income. The reversioners were to have the benefit of the excess, and must have borne the loss, so far as the fee was concerned, but this excess or loss was as an accident, not as a thing designed by the testator.

The above mode of distributing the $60,000, is based on the complaint as it now is, and the proofs in the cause. The order to be entered should be without prejudice to the right of the plaintiffs to move by amendment or otherwise, to present such a statement of facts and such proofs (if they exist) as would throw a great portion of the charge of $60,000 upon the defendants’ shares of the estate.

[New York General Term, November 2, 1857.

The costs and counsel fees of all parties should be paid out of the fund, as the controversy has been fairly conducted, and arose out of the construction of that part of the will relating to that fund only, and neither party succeeds entirely.

' Mitchell, Roosevelt and Davies, Justices.]