87 N.J. Eq. 307 | N.J. Super. Ct. App. Div. | 1917
A brief statement will develop the single question presented for decision. William Rowland, by his will, made numerous pecuniary requests, some outright and others to his executors in
Doubtless, this precise question has been often before our courts, but it seems that the decision is not recorded in any of our reported cases. Elsewhere may be found an abundance of authorities upholding the course pursued by the court below. Lew. Trusts (8th ed.) *801. states the established and guiding rule thus:
“The tenant for life of a residue is not entitled to the income accruing during- the delay allowed for the payment of legacies- on so much of the testator’s property as is subsequently applied in, paying them. Executors, as between themselves and the persons interested in the residue, are at liberty to have recourse to any funds they please for payment of debts and legacies, but in, adjusting the accounts between the tenant for life and the remainderman, they must be taken to have paid the debts and legacies not out of capital only or out of income only, but with such portion of the capital, as together with the income of that portion for one year from the testator’s death, was sufficient for the purpose.”
See, also, Perry Trusts (6th ed.) § 551.
In Allhusen v. Whittell, L. R. Eq. Cas. 295, the testator, Whittell, gave his estate, which was subject to the payment of legacies, to trustees to pay the income to his father for life, with' remainder over in four equal parts. Vice-Chancellor Wood, in illustrating the rule, said that supposing n testator has a large sum, say £50,000 or £60,000, in the funds, and has only £10,000 worth of debts, the executors will be justified, as between themselves and the whole body of persons interested in the estate, in
In New York we find the same rule adopted. In Williamson v. Williamson, 6 Paige 298, the testator’s will contained pecuniary legacies, and the income on the residuary estate he gave to his wife for life, with the remainder, over to his three sons. In determining the right as between the life tenant and the remainderman to the income of the estate for one year on the amount of the legacies, Chancellor Wadsworth said that it was not the intention of the testator to give his wife the interest or income
It is, therefore, quite clear, both upon principle and authoritjq that the income on the legacies under consideration passed into the residue as principal and not as income thereof.
A clear distinction, however, is drawn between the application of income on a fund applied/to the payment of a vested legacy and accumulations on the principal of an estate from which contingent legacies, or those payable at an indeterminate time in the future, may be payable. In the latter instances, the income falls into the residue as income of the residue. The reason for this is the uncertainty as to whether the estate will over be called upon to pay such legacies, and until it is the whole of the principal is “residue until wanted,”. and the income thereof is, of
Counsel for the appellant, upon the argument and in his brief, cited Corle v. Monkhouse, 47 N. J. Eq. 73, as upholding his contention. That case is authority for one of the exceptions to the general rule that interest on legacies' does net begin to run until one year after the death of the testator, viz., where a gift is made of the interest or income, either of the whole of the residue, or a particular part of it, to one person for life, and the principal is given over to others oh the death of the life tenant, the life tenant is entitled to interest from the date of the death of the testator. This doctrine has been laid down time and again by our courts, and is not at this day even debatable, but, manifestly, it does not involve the point of law raised on this appeal.
The decree below will be affirmed, with costs.