9 Paige Ch. 160 | New York Court of Chancery | 1841
The counsel for both parties in this case appear to have acted upon the supposition that Mrs. Chaubért was entitled to the whole income of the bridge property ; in the same manner as if the testator had made a specific bequest of the rents and tolls of this particular portion of his property to her for life, with remainder to others for the residue of the term for which the franchise of taking tolls was to continue; unconnected with the general residuary bequest of all his property to her for life, after payment of debts, with remainders therein to others after her death. Upon that supposition it was clearly wrong to allow the executrix to expend upon this property, the capital of which was constantly decreasing by the efflux of time, other portions of the personal estate, in which the interests of the owners of the successive life estates therein and of the ultimate remaindermen in fee was entirely different. For, as the counsel of the appellant correctly remarks, if Mrs. Chaubert should continue to live until the charter of the bridge and the term for years in the toll house and barn lot expires, the appellant would lose the whole of the personal estate which had been laid out in improvements upon that property. And the result would be the same to the children of Mrs. Cairns, and their descendants, if their mother should survive the first tenant for life and outlive the continuance of this term of twenty-nine years.
Both parties are wrong, however, in supposing that the widow was entitled to the whole income of the bridge property in the situation in which it was at the time of the tes
The surrogate was right in allowing the executrix the $500 paid to Clark for his services in settling the estate j as it appears by the testimony to have been a proper disbursement, and such as was allowed by this court in the cases of McWhorter v. Benson, (Hopk. Rep. 28,) and Vanderheyden v. Vanderheyden, (2 Paige's Rep. 287.) That part of the decree must therefore be affirmed.
The decree was also right in allowing to the executrix commissions upon the bonds and mortgages which were valid and collectable ¿ and which were assigned to the trust company, with the assent of the surrogate and the appellants, as permanent securities for the benefit of the remaindermen. This money was, in legal effect, received and paid over for the purposes of the trust. The executrix was not, however, entitled to commissions on the $10,000 at which the bridge property was inventoried, until it had been actually sold and the money invested for the purposes of the trust. For if she died leaving that property unsold, it would be necessary that a new personal representative of the testator should be appointed to perform that part of the trust, before the property could be converted into money and distributed to the legatees entitled thereto according to the directions of the will. The commissions, to that extent, must be disallowed.
As neither party has wholly succeeded upon this appeal, I shall not allow costs to either as against the other.. And the proceedings are to be remitted to the surrogate to restate the account in conformity with this decision.
See Pickering v. Pickering, 4 Mylne & Craig's Chancery Reports, 289.