
    In the Matter of the Settlement of George W. Chauncey, as Trustee.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 28, 1889.)
    
    Wills—Deficiency in income—Construction.
    A testatrix, by her will, devised the income of her estate to her husband for life less the payment of an annual sum to one D. There was a deficiency in the payment of this annual sum for some years; subsequently the-income received by the trustee exceeded the annual payment. Held, that D. was not entitled as against the next of kin to have the excess of income over the annuity applied in his favor until the previous deficiency was made up.
    Appeal from a judgment of the Kings county special, term.
    
      William C. Holbrook, for app’lt; Johnson & Lamb, for resp’t.
   Barnard, P. J.

The court of appeals in Delaney v. Van Aulen (84 N. Y., 16), held that the gift to an executor of a. yearly sum out of the income of the estate of Mary S. Kirby, to be applied by them to the use of Delaney, was not a demonstrative legacy, and that no part of the body of the estate could be applied to make up a deficiency of income.

The peculiarity of the will was that the entire incomé was given for the use of the husband of the testatrix, less, a certain sum which was first to be deducted for the use of Delaney.

The court of appeals held that there was no method of raising the money except that of the income provided, and that the husband could only get this whether it was much or little, and that it was not the intention of the testatrix to give Delaney more than an interest in the same fund. The question whether Delaney had a right to have deficiencies in yearly payments made up from increased avails in after years, was left undecided, ■

The second trial of the case seemed to have only presented the same question, and was decided in the same way. Delaney v. Van Aulen, 92 N. Y., 627.

The court expressly states that no new facts were presented. Now, it appears that the husband died on the 11th of November, 1887, and the will gives $2,000 per annum to the use of Delaney during his natural life, from and after her death. There is no gift of the surplus life estate in each year. There was a deficiency in the payment of the annual sum, and now there is a small surplus in each year.

The question left undecided is, therefore, presented: Whether the surplus is to be paid to Van Aulen on account of the former deficiency, and whether the future excess of income over the annuity is to be so applied until the deficiency is made up.

It seems plain that, in the judgment of the court of appeals, the provision for Delaney was not an annuity. “ It is given as the current avails of a fund. The husband of testatrix had the entire rents and profits of the estate after the payment from it of the annual sum. It seems quite •clear that the intention of the will is, that as between the husband and Delaney there should be no holding over in 'lean years a balance as against more prosperous ones. The husband, in that case, might be left wholly destitute. The court of appeals gives the more favorable place to the husband.

If, as between the husband and Delaney, the account was to be closed each year, there is nothing in her will showing that the testatrix had a different intention as between Delaney and her next of kin than she had as between Delaney and her husband. The entire life estate was given away, and it is only a sum out of it in each year that is to be applied to Delaney. The testatrix supposed the estate always to pay the sums to Delaney. The testatrix intended that the annual avails should be used as far as they would go. That there is nothing in the will showing an intent to put the next of of kin in a worse position after the husband’s death as to the life estate he had enjoyed. The will is so different in structure from that of Stewart v. Chambers (2 Sandf. Ch., 382) that it is not authority for the construction that the deficiency for one year in the payment to Delaney may be carried to a future year. The next of kin were to be provided for after the husband’s death, and it is not likely that she intended to make a different rule as to them.

The judgment should therefore be reversed and a new trial granted, costs to abide event.

All concur.  