73 N.Y.S. 718 | N.Y. Sup. Ct. | 1901
Charles L. E. Hutchinson died on September 28, 1890, leaving a will and two codicils which have been duly admitted to probate. Administrators with the will annexed were appointed, who so far administered his estate as to pay all his debts, and dispose of all his estate except a certain contract or claim against parties residing in France, for the sum of six hundred and twenty-nine thousand two hundred francs. Thereupon an order was made by the surrogate upon consent of all parties in interest, directing said administrators to assign such contract or claim to the defendant the Continental Trust Company, in trust to hold the same and to pay over to the defendant Henry South-gate, trustee for Harriet A Whitmore, whatever may be received
“ Second. And upon the death of the said Harriet A. Hume after my decease said trust in respect to the said sum of twenty thousand dollars shall cease and determine; and I do hereby direct and declare that said sum of twenty thousand dollars shall thereupon be and become a part of the rest and residue of my estate, and be disposed of as in mv will and this codicil directed in re*
The next question to be considered is as to the amount of interest which should be credited to the trustee for Harriet A. Whit-more upon the amounts bequeathed to him. At the time of the testator’s death, the bulk of his estate, and, indeed, all that now remains of it, was loaned to the firm of A. Hutchinson & Co. of Paris, France, under a contract between the testator and the children of his deceased brother. This is the same contract which is now held by the defendant Trust Company. By its terms, the loan was to bear and pay interest at the rate of eight per cent, per annum, and it is only by enforcing a repayment of this loan that anything has been or can hereafter be paid to the trustee for Harriet A. Whitmore. It seems to be clear, under the authorities in this State, that such trustee was entitled not only to receive interest upon the funds bequeathed to him in trust from the date of the testator’s death, but to receive that interest at the rate upon which the funds were invested when the testator died. Matter of Stanfield, 135 N. Y. 292; Matter of Baker, 57 App. Div. 44; Matter of Slocum, 60 id. 441. The last case is very similar in its facts, so far as concerns the rate of interest to be received. The estate of the decedent consisted chiefly of moneys invested in a business, from which it was drawing interest at the time of his death at a certain rate. He gave his estate to his executor in trust to convert it into money and invest it in certain specified securities, and directed that the income of his estate should be paid to certain persons during their lives. It was
The next question presented by the pleadings is raised by the administratrix, with the will annexed, of Hiram Hutchinson, who claims to be entitled to receive the income on one-third of the residuary estate from the date of testator’s death to November 1, 1896, the date of the death of said Hiram Hutchinson. After providing for the annuities to Hiram H. Southgate, Leah Knapp and Eugenie (the two latter having been afterwards revoked), the testator gave the residue of his estate to his executor in trust, and directed him “ to divide into three equal parts, shares or portions,” and, as to one of sdid portions, to further hold it for the life of Hiram Hutchinson, paying the income to him. The administrators, with the will annexed, of the testator never did, in fact, divide anything into shares or portions under this clause, because nothing ever came into tlieir hands, except funds which they were required to pay out for debts or for charges upon the estate, which took precedence of the residuary bequest, consequently Hiram Hutchinson never received any income under this clause of the will. The testator seems to have regarded the division of the residue of his estate into three separate funds as something which could, not take effect at once upon his death, but which would be necessarily postponed to some date subsequent thereto. He provides that “ should the said Hiram Hutchinson die before the division hereinbefore provided to be made the share or portion that would be set apart for his benefit as hereinbefore provided, shall be equally divided, and one equal moiety thereof set apart as and for the share of said Sarah Southgate and the other equal moiety disposed of as hereinafter provided as and for the share of said Alcander Hutchinson.” Later on in the same clause, he provides as follows: “ And upon the death of said Hiram Hutchinson at any time after a division in which he shall be and become entitled to an interest and benefit therefrom the part, share or portion so set apart for his benefit shall be equally, divided, disposed of and in all respects be conveyed, paid and delivered in precisely the same manner as hereinbefore provided with respect to such share in the event of his dying before such division.” A careful reading of these two provisions of the will seems to indicate clearly that the testator regarded the
The last question to be determined relates to the liability of the children of Aleander Hutchinson for the indebtedness which now constitutes the sole remaining asset of the estate. After the establishment of the trust fund for Harriet A. Hume or Whitmore, the remainder of the estate is to be divided equally between Mrs. Southgate and the children of Aleander Hutchinson, both Hiram H. Southgate and Hiram Hutchinson being now dead. It is the hontention of the plaintiff that the children of Aleander Hutchinson are primarily liable, under the contract, for the repayment of the loan, and that no part thereof should be paid to them until they have paid or caused to be paid to the lawful
A decision and decree in accordance with the foregoing opinion may be settled upon three days’ notice.
Judgment accordingly.