119 Misc. 15 | N.Y. Sur. Ct. | 1922
In this proceeding a construction is asked of the following provisions of the will:
“ Item 1. I will and decree that all my just debts and funeral expenses shall be paid out of my estate. Such a portion of my entire estate as is necessary to guarantee an annual dividend of Twelve Thousand Dollars ($12,000) a year, is to remain intact so long as my wife, Cordelia C. Velie shall live. The income created from this fund shall be paid to my wife, Cordelia C. Velie, at the discretion of the executors.”
The language used in this will is quite similar to that in the wills construed in Delaney v. Van Aulen, 84 N. Y. 16, 20, and Spencer v. Spencer, 38 App. Div. 403. In Delaney v. Van Aulen, supra, there was a direction to pay a specified sum a year as income. It was held that the provision for the life beneficiary was not a demonstrative legacy and was, therefore, not payable from the corpus of the fund in case of a deficiency of income to satisfy the full sum directed to be paid by the will. In Spencer v. Spencer, supra, the testator directed that his executors set apart a certain portion of his real estate sufficient to “ yield at all times a yearly net income of $25,000 ” to be paid to his wife during her life. Chief Judge Cullen was of the opinion that the gift was neither a demonstrative legacy nor an annuity, but a gift of rents and profits up to a specified sum. So here, the testator’s intention is evidenced by the use of the words “ such a portion of my estate as is necessary to guarantee an annual dividend of $12,000,” and by the words “ income created from this fund ” in item 1. It is to be noted, also, that the word “ income ” was repeated by him in the 3d paragraph of the will. The provisions of the will indicate no intention to prefer the widow over his children, who are designated as the remaindermen of this fund. If the corpus was permitted to be
Submit a decree, therefore, construing the will accordingly, and directing the payment of the net annual income only to the widow for life.
Decreed accordingly.