Spear v. Tinkham

2 Barb. Ch. 211 | New York Court of Chancery | 1847

The Chancellor.

The surrogate adopted the legal mode in computing the interest, in this case, if any interest account was proper in settling the account between the executors and those who were entitled to the personal property after the death of the widow. Where an executor mixes up the trust funds with his own, or neglects to keep regular accounts of the investments and interest received upon such funds from time to time, there is no other way in which justice can be done to the cestuis que trust, than to charge him with interest as if the fund had been-kept invested upon interest, payable periodically, and as if the payments had been made, by him, from the interest and principal thus received and in hand when the several payments from the trust fund were made by him. And interest should not be computed upon the capital fund, for a term of years, with a deduction of the payments, and interest on such payments, as claimed in the schedules presented to the surrogate in this case. Considering the will, therefore, as giving to the children of the testator only so much of the personal estate as might not be wanted for the use and support of the widow the decree- of tile surrogate is' less' favorable to the respondents than if slioüld have beéff. For the surrogate Bias, in effect, allowed the executor ten per cent commissions upon all the capital of the estate of the decedent' which' wás- riot delivered "over t'o the widow in. the first place; and five per cent upon the part thus, delivered to her, and upon the interest subsequently received. And there are some other errors in favor of the respondents'.-

The surrogate was wrong; however; in the construction of the will, if he has correctly stated its' contents in his return. And instead of allowing to the executor any payments made to or on account of the widow, out of the capital of the estate, he should have charged him with the whole capital in his hands, exclusive of the specific articles Of personal property, which would not be' consumed in the Using, delivered to her soon after the death of the testator. There is nothing in the will) as set out, from which it can be inferred that the testator intended to give to his widow any part of the capital of hiis personal estate. He gave to her merely the use and occupation thereof for life; eipressly bequeathing it to Ms three children after her death. The placing Of the guardianship and control of such use in the trustees of the church, if it was not absolutely void as a trtist, could not enlarge her life estate in the property. It was,, at most, constituting the church, in its corporate capacity, a trustee Of her interest in the testator’s estate.

As a general rule, where there is a bequest of the whole of the testator’s personal éstate, or of the residue thereof after pay- ment of debts and legacies, to one person for life, with a remainder over to Others after the termination of such life estate therein, the whole must be converted into money, and invested in permanent securities, by the executor, and the income paid over to the person entitled to the life estate. (How v. Earl of Portsmouth, 7 Ves. 137. Fearns v. Young, 9 Idem, 549. Shuler v. Covenhoven, 2 Paige's Rep. 122.) The rule is the same where the residuary bequest for life,, or for a limited term, embraces articles not necessarily consumed in the using; such as furniture, books, plate, fcc., as well as property which must be so consumed; Unless the will Contains indications of an inté tion, on the part of the testator, that the legatee for life should enjoy the property, or some particular parts thereof, in its then state, as a specific bequest for life. (Mills v. Mills, 7 Sim. Rep. 501. Randall v. Randall, 3 Mer. Rep. 193. Collins v. Collins, 2 Myl. & Keen, 703. Alcock v. Sloper, Idem, 699. Bethune v. Kinedy, 1 Myl. & Craig, 114. Pickering v. Pickering, 4 Idem, 289.) Wherever specific articles, not necessarily consumed in using, are bequeathed to a legatee for life, with a limitation over, and without any direction to the executor to hold them in trust for the remainder-man, the executor is authorized to deliver the same to the person entitled to a life estate therein; taking from such person an inventory and receipt stating that such articles only belong to the first taker, for life, and that afterwards they are to be delivered to the legatee who is entitled to them in remainder. (Leake v. Bennet, 1 West’s Ch. Rep. 284. Bill v. Kinaston, 2 Atk. 82. Foley v. Burnell, 1 Bro. C. C. 279.)

The precise language of the will is not given in the surrogate’s return, in this case, nor does the return state what was the nature of the property that was delivered to the widow soon after the testator’s death. Perhaps, therefore, the executor may have been authorized to deliver to her that part of the property, except the $10,76 in money, to be kept by her for life, and to be received from her by the children at her death. But even if the executor was not answerable to the children for that part of the capital of the personal property, he was bound to keep the capital of the residue of the estate properly invested, for the use of the testator’s son and daughters after the death of the widow. And the interest or income alone of that part of the estate should have been paid to the widow, or paid out for her rapport, according to the true construction of the will, so far as an opinion of its terms can be formed from the return of the surrogate. If the respondents had appealed from the sentence and decree of the surrogate, therefore, I should, upon this return, have been bound to charge the executor, for the capital of the fund belonging to them, and interest thereon after the death of the widow, with an amount three or four times as large as the executor has been charged therefor, by the surrogate. The present appellant then has no ground to complain of the decree.

The sentence and decree appealed from is therefore affirmed; and the proceedings are to be remitted to the surrogate.