
    In re Estate of Goetschius, Deceased. No. 1.
    (Surrogate’s Court—Rockland County,
    February, 1893.)
    A gift for life of rents and income of real estate creates an estate therein, and if no duties are charged upon executors with respect to their application, no estate or trust is created in them in respect thereto.
    
      It seems, however, that title to and right of custody of personalty, where' the contrary is not expressly provided, is primarily in executors for the purpose of protection until final disposition.
    An executor who collects Income without authority, renders himself individually liable, and a Surrogate’s Court has no jurisdiction to entertain an accounting therefor; and if he invests and uses the personalty to his individual purposes he is chargeable with such interest as the investments earned, as well as profits realized on sale or exchange thereof.
    Application for a judicial settlement of the account of proceedings of a surviving executor. The opinion states the case.
    
      Snider & Hopper, for executor.
    
      Arthw S. Tompkins and _ZZ D. Sully for contestants.
   "Weiant, S.

The tesiator, Harmon Goetschius, died on or about August 19, 1859, leaving a last -will and testament, which was admitted .to probate by the Surrogate’s Court of this county on or about Hovember 28, 1859, and letters testamentary thereof were thereupon issued to the executors therein appointed, the accounting party hereto, John H. Goetschius, and one George Goetschius, two sons of tjie testator.

The executors caused an inventory of the personal estate of the deceased to be made and filed in said surrogate’s office on the 19th day of December, 1859, showing assets amounting to $2,282.10. The two executors entered upon the administration of the estate and continued therein together until the death of George in the year 1870, since which time the accounting executor has solely acted in such administration.

The widow of the testator, Fanny Goetschius, died on or about April 19, 1891, leaving a last will and testament, which was thereafter, on May 25, 1891, proved and letters testamentary granted to Stephen Van Orden and John E. Wanamaker, as executors thereof.

The testator by his will by bequest and devise, made the following provision for his widow: I give, bequeath and devise to my beloved "wife Fanny, the use and occupation, income and profit" of all my real and personal estate, to have and to hold the same for and during her natural life; and I do further order and direct that my sons John Henry and George shall cut, haul and prepare for burning, firewood sufficient for her use ; and further, it is my wish and desire that she remain in the house we now occupy, but if she prefers to take up her residence with any other person or place she is at liberty to do so; and she is at liberty to surrender her claim or any part thereof to my estate to my children, if she thinks proper, and after her death I give, devise and bequeath my real and personal estate to my children and grandchildren in manner and form following, to wit: ” Here follows a devise of a parcel of land to his daughter Catharine; a devise to his sons John Henry and George of the remainder of his real estate in the town of Bamapo; a bequest of the sum of $800 to Catharine Louisa, the daughter of the testator’s deceased son Stephen, to become due and payable when she shall arrive at the age of twenty-one years; but if the testator’s wife Fanny is living at that time, then to become due and payable to her one year after the death of his said wife; a bequest of $100 to a grandson, Harmon Goetschius Bogart, together.with certain specific articles of personalty; a bequest to Elizabeth Bogart and Harmon Goetschius, children of the testator’s deceased daughter, Maria, each of $500, to become due as they respectively arrive at the age of twenty-one years, or if the testator’s said wife is then living, then to become due one year after her death, and in certain contingencies to the survivor; a legacy of $100 to Henrietta, the widow of testator’s son, Stephen; a devise and bequest of the portion of the estate of George M. Goetschius, deceased, which the testator expected to receive on the distribution of that estate, to his daughter, Catherine, and his two sons, John and George; and a devise and bequest of all the rest, residue and remainder of his estate, to his three children, Catherine, John and George, and his grandchildren, Catherine Louisa Goetschius, Elizabeth Bogart, and Harmon Goetschius Bogart, to be equally divided between them, share and share alike.

It thus appears that the executors, as such, are given no authority or control over the real estate of the testator, and the consideration and investigation of the income, or protits arising therefrom, and disbursements on account thereof, may be dismissed from this accounting. Those are matters to be adjusted between the individuals to whom the real estate was devised, respectively, or their legal representatives.

The executors as such were not clothed with any duty or .authority as to the same. A gift to the testator’s widow of the rents and income of the real estate for life creates an estate in the realty itself, and if no duties are charged upon the executors with respect to their application, no estate or trust is created in them in respect thereto. Macy v. Sawyer, 66 How. Pr. 381; Matter of Blauvelt, 131 N. Y. 249; Matter of Blow, 2 Connolly, 360, 366. As to the cutting of wood and timber from the lands devised by the testator, it also follows, that this court has no jurisdiction to hear or determine the same. That is an individual matter between the devisees and the executors in their individual capacity.

As to the personal estate, no duty seems to -have been devolved upon the executors until after the death of the widow, and then only to make distribution of the same in accordance with the directions of the will, after payment of debts and burial expenses, which must necessarily have precedence. During the widow’s lifetime the “ use and occupation33 of all of the estate, real and personal, are given directly to the widow. No direction is given to the executors in reference to the same. They are not clothed with any express trust to receive and apply the income thereof, for the same is given directly to the widow. It seems, however, that title to and right of custody of the personalty, where the contrary is not expressly provided, is primarily in the executors for the purpose of keeping and protecting the same for final disposition in accordance with law and the directions of the will. There is a species of trust attached to every executorial office, and as was said by the chancellor in Bowers v. Smith, 10 Paige, 199, “The executor always takes-the legal title to the personal estate of the testator as a trustee.” In re Shipman’s Estate, 6 N. Y. Supp. 276.

“ But there is a wide difference between the trust which is attached to the executorial office and an active trust, founded upon the creation of a trust estate.

“ Here there is no trust estate, no active trust, and no testamentary trustee. The duty of the executor as such continues until the falling in of the life estate. This is the settled rule as laid down in a long line of cases.” Ibid., and cases there •cited. “ When a life estate is bequeathed in a sum of money "with remainder over, the legatee is entitled only to the income, and the principal, subject to the life estate, belongs to the remainderman, and unless otherwise directed by the will, it is the duty of the executor either to invest the money and pay the interest to the first legatee during fife and preserve the principal for the remainderman, or, on paying it over to the legatee, to require security from him for the protection of the remainderman in respect to the principal.” Smith v. Van Ostrand, 64 N. Y. 278-282.

“ In such a case there is no other trust than the law creates and vests in the executors. They take the legal title to all personal property. They must convert it into money, pay debts, expenses and specific legacies, if any, and as they are bound to execute all the provisions of the will, they are charged with a duty, as it were, to A. and B. They must give to A what belongs to him and then to B what belongs to. him.” Livingston v. Murray, 68 N. Y. 485-492.

The executors here having retained the custody and management of the personal estate, the executors of the w ill of the widow claim that they are accountable for the same as. executors for both principal and income. I am not fully convinced that such contention is well founded. If the-income was collected by them without j>ower under the will then they become liable individually, and tins court would have no jurisdiction to entertain an accounting therefor. Matter of Cooley, 6 Dem. 77, and cases there cited; Matter of Blow, 2 Connolly, 360-369. But if it be assumed that the executors as such are here accountable for the income, upon the whole case it does not appear that they have been shown to have any balance thereof in their hands.

The testimony discloses that the personal estate has been in part invested and in part used and applied to the individual purposes of the executors. They are chargeable with such interest as the evidence, which is without conflict, discloses that the investments earned, .as well as for all profits realized on the sale or exchange of the securities, for they, cannot make any individual gain from the trust funds. Matter of Butler, 1 Connolly, 58-67.

For such portion of the funds as they used for and applied to their individual benefit they must be charged with the legal rate of interest then prevailing. It is not a case for charging compound interest under the circumstances. Matter of Kennedy, 2 Connolly, 215. This income, however, was payable to and belonged to the widow. The accounting executor claims' that all of it was paid to her in her lifetime as the same was collected, either in cash, coupons, payments in her behalf, or by goods which she received from his store. But three receipts, however, are produced which show payments of interest collected. These were given in 1864 and 1865, and are for interest accrued on savings bank deposits and a bond and mortgage.

The surviving executor testified to his having paid the widow all income received by them, and for the interest lawfully due the widow from the executors for the funds applied to their personal use, that they paid her with cash, goods from then- store, and by paying taxes for her at her instance which she as life tenant was bound to pay, and produced receipts showing such payments. The executor is somewhat corroborated by other witnesses, who knew of payments made to the Avidow, and Avho knew of her obtaining goods from the executors’ store. Sometimes the AvidoAV paid for the goods she received, which lends an inference that the executors had paid her all accrued interest, for she would most probably not have paid for any goods if the executors were indebted to her for income to which she was entitled.

The executors do not seem, at least for many years, to have kept any accounts of their transactions Avith the widow, and the evidence is so general and indefinite that no satisfactory conclusion can be reached. It appears, hoAvever, even assuming that the executors as such are accountable for the income of the personal estate, that the evidence is insufficient to charge the executors Avith any balance of income for Avhich they Avere liable to pay to the widoAV, or now to her executors.

Again, it may be that all liabilities for such income collected more than six years prior to the Avidow’s death are barred by the Statute of Limitations. Foster v. Town, 2 Dem. 333; Matter of Nicholls, 23 Abb. N. C. 479 ; Mills v. Mills, 115 N. Y. 80 ; Brooks v. Brooks, 4 Redf. 313 ; Matter of Dunham. 1 Conn. 323 ; Matter of Clayton, Id. 445 ; Roberts v. Ely, 113 N. Y. 128.

As to the principal personal estate the surviving executor is accountable for the same. In his inventory he charges himself Avith $2,280.10 of assets. As against this, he is entitled to credit for the eight dollars and seventy-five cents of accrued interest paid the Avidow, also, the Aralue of the articles of personal property Avhicli he placed in the charge of the AvidoAV for her use, to which she was entitled under the will, as the same appears to have been lost by ordinary use and Avear by her, except the horse bought by the executor, George Goetschius, for forty-five dollars, and for which, he never paid. As that executor had an equal right to the custody of the funds and properties of the estate I do not think, under the authorities, that the accounting executor is liable for that item. Matter of Demarest, 1 Connolly, 200. As to the credit in Schedule C, for the payment of $150 for interest upon the $100 note of" the testator held by George J. Snider, I do not consider that the same is allowable. The executors had moneys in their hands out of which the note should have been paid and discharged within a reasonable time after they entered upon their administration of the estate, and they could not legally fail so to do and charge the estate with the accruing interest for the long period of time that has since elapsed. Matter of Babcock, 2 Connolly, 82.

The item of fifteen dollars credited in the same schedule for legal services on this accounting is not properly there. That is a matter for adjustment upon the allowance and taxation of costs in this proceeding.

For the balance of the principal of the estate the accounting executor is chargeable with such interest or income as may have been earned or accrued thereon, where invested, since April 19, 1891, the date of the death of the widow; and as to the remainder, which seems to have been appropriated to their own use by the executors, the accounting executor must be charged with legal interest from the same date. The increase or decrease which resulted on the sale or exchange of securities is chargeable to the principal estate. Matter of Lawrence, 7 N. Y. Supp. 332.

The credit of $500 in Schedule B, being one-half of the $1,000 which the executors used in their business, cannot be allowed. That was money of the estate which went into their partnership business, and so far as this estate is concerned, both became liable for the full sum appropriated, as the moneys were so used with the assent of both.

The inventory is not before me, and it may be that the amounts and values herein stated are incorrect, and, therefore, upon the settlement of the decree the same may be therein corrected. I have simply indicated the rules in conformity to which the accounts must be adjusted and settled by the decree.

The amount, for which the accounting executor thus appearing to be liable, must be decreed to be applied by him first, in payment of the costs, and expenses of this accounting; then the burial expenses, if any, unpaid ; next in discharge of the debts of the testator; and the remainder to the legatees agreeably to the provisions of the testator’s will.  