
    Frances H. Duclos et al., Resp’ts, v. Mary S. Benner, Individually and as Executrix, et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    1. Trust—“ Profits and earnings ”—Premium on bonds.
    A testator created a trust in favor of his widow by setting apart $30,000, and directed that she should receive the income, interest, profits and earnings thereof. Held, that these words did not cover a profit realized on the salé of certain lands in which the money had been invested, but that the widow was entitled to the income of the whole sum, the original amount and the profits added.
    2. Will—Constrction—Devise.
    The testator left him surviving five children and a grand-son. He directed that his residuary estate be divided into six parts, and that each be held'in trust. These trusts terminated at different periods. The-shares of the three unmarried daughters were to be paid at marriage or majority. The shares of the two other children were to be held in trust for life. The one for the grand son was to terminate at majority. The grand-son died without issue. The will provided that in such case his share should be divided among his surviving children in the same manner as before provided in the will. Held, that the share of each child in the share of the grand-son must be treated in the manner provided for treating the original share of each child.
    Appeal from judgment entered on decision construing, the will of Hiram Benner, deceased.
    
      Jos. A. Shoudy, for app’lts; C. Bainbridge Smith, for resp’ts.
   Ingraham, J.

This is an appeal from a judgment entered on the decision of the court at special term construing the will of Hiram Benner, deceased, and two questions are presented on the-appeal.

First, whether the defendant Mary S. Benner is entitled to the premiums or surplus arising on the sale of $30,000 United States-four per cent bonds; the sum of $30,000 which the will directed should be held for the benefit of the appellant having been invested in such bonds.

The will gave to the executors and trustees all of the testator’s estate in trust, and then contained the follwing provision:

“ To set apart or invest the sum of $30,000, or one-third of the-appraised value of my personal estate, as my wife may elect in writing, and pay over the income, interest, profits and earnings thereof to my said wife one-half yearly so long as she shall live.”

The appellant elected to have the sum of $80,000 invested for-her benefit and the trustees under the will invested said sum with .other moneys of the estate in United States bonds, upon which the widow has received the annual interest. The bonds were subsequently sold at a profit over and above the amount paid for-them of $8,465.62, and the appellant claims that the profit upon the investment should be paid to her. .

The rules applicable to questions of this character have been settled by the court of appeals in the Matter of the Accounting of Gerry, 103 N. Y., 449; 3 St. Rep., 688, Ruger, Ch. J., delivering the opinion of the court, saying :

“The primary rule for the determination of questions arising' upon the construction of wills is the ascertainment of the intent, of the testator from a consideration of its provisions. In the casein hand the will provides specifically for the interest which the-legatee for life was to take in the fund, and it is limited to the annual interest, income and dividends thereof. All beyond this must from necessity have been intended to go to the remaindermen, for there are no other persons who could lawfully take-it."

Looking at the will in question to determine the intent of the-testator, I think that the appellant was to receive the yearly income of the trust estate. The trustees were to pay over “ the income, interests, profits and earnings thereof to my said wife one-half yearly so long as she shall live.” What was to be paid was-the income, interests, profits and earnings which accrued upon the fund so invested each half year.

Whether the securities in which the fund was invested increased or decreased in value during each half year had no effect upon the interests, profits, income and earnings during that half year. As was stated in the Matter of Gerry, supra, “ the theory of the will did riot contemplate any traffic in securities by the trustee, but a permanent investment in interest bearing obligations subject to be sold or exchanged only when the exigencies of the-trust required it to be done.”

It is quite clear that the life tenant could not have compelled' the trustee to sell securities lawfully purchased and held, upon the ground that their market value had appreciated in his hands,. any more than he could have compelled her to make good any deficiency in the value of such securities.

The addition of the words “profits and earnings” does not show that the testator had any other intention than that stated in the Matter of Gerry.

What the appellant was to receive was the regular income from the securities in which the trust estate was invested, and as that was to be paid to her each half year, it is clear that the regular-interests from such securities was that which the testator intended, she should receive.

It would be impossible to administer a trust of this character upon any other principle, for if the contention of the appellant is correct in case the securities in which the trust funds were invested at the end of the half year had enhanced in value, the cestui que trust would be entitled to have the amount of such enhancement during the six months paid to her, and that would be impossible without selling the securities in which the trust funds were invested. It is plain that a sale at the end of each six months of the trust securities would be contrary to the obvious intent of the testator.

Nor is there any principle upon which the appellant can claim that she is entitled to legal interest upon the trust fund or any sum save the yearly income that the securities in which the trust fund was invested realized.

But we think the appellant was entitled to have the whole-fund, including surplus, invested and receive the income thereof pending the trust. No division of the trust fund is to be mad© until after the death of the decedent; and it was the evident intention of the testator that the said fund should be invested and the income of the investment paid to the life tenant as long as she lived.

It is clear that if there had been a f^ll in the securities in which, the trust fund was invested, and. a loss occasioned, and. that instead of the fund being increased it had been diminished, that, the life tenant could only have received the income derived from the investment of the diminished funds.

There is no provision for supplying any deficiency which might arise from the depreciation of the securities in which the fund was invested by taking any other part of the estate. The $30,000 was to be invested and the income received.

If there had been a provision in the will that the $30,000 should be invested in a house and the rent received from the letting of the house applied to the life tenant, it certainly would not be-claimed if the house increased in value and the rent was in proportion that the life tenant would not be entitled to the whole amount derived from the corpus of the fund, although it had greatly increased in amount.

The $30,000 to be invested for the benefit of the wife was the corpus of the fund, and the income arising from any increase thereof the life tenant was entitled to receive. If this was not so then the executors would be holding the excess until the death of the life tenant, as there is no provision in the .will for a distribution until the happening of that event

The defendant's executors also appeal from the judgment that provided that the share held in trust for the testator’s grandson, Hiram B. Bonta, be equally divided between his surviving children.

The will directed the'executors to pay to the son-in-law .of the testator, Frank M. Bonta, for the support, maintenance and education of his grandson, Hiram B. Bonta, the son of his deceased daughter, Laura, and said Frank M. Bonta, the income of another sixth part of his residuary estate each and every year during his majority, such payments to be made half yearly, or oftener as his executors and trustees should determine, and upon attaining the ■ age of twenty-one years to transfer and pay over to his said grandson the said share and part of his estate. And by the fifth clause of the will it was provided as follows:

“Should my said grandson die, leaving lawful issue him■ surviving, such issue shall take and receive the principal of the share which he would receive and would have had the benefit of, but" should he die without leaving lawful issue him surviving, the share which would have gone to or been held for his benefit shall belong to and be divided among my surviving children and the lawful issue of those who shall have died in the same manner as hereinbefore provided.’’

There was no provision in the will making any bequest of the one-sixth part of the estate in question to the grandson until his arrival at the age of twenty-one. Prior to that time, that portion of the estate vested in the executors; the income was to be paid to the father of the grandson.

Upon the death of the grandson before arriving at the age of twenty-one, the trust had not terminated, and there is nowhere expressed any intention of the testator that the trust should then terminate. But from the language used in the fifth clause of the will it would rather appear to have been his intention that this one-sixth should be applied to the use of his other five children, in the same manner that he had provided; that the portion of the estate specifically bequeathed or devised to each, was to be by the will held for them. All of the estate was held in trust, one-sixth to each of the testator’s five children, and one-sixth for the grandson, and upon the death of the grandson his share was to- be divided among the testator’s surviving children and the lawful issue of those who shall have died, in the same manner as before provided in the will; or in other words, one-fifth of the grandson’s share was to go to each of his surviving children, or their lawful issue, in the same manner that he had before provided in his will, such child’s one-sixth was to go to him. If that manner was that it was to be held in trust for such child, then the one-fifth of the grandson’s share was to be held in trust for such child. If, on the other hand, by the terms of the will, such child’s one-sixth had already been, paid to her, or to her lawful issue, then the one-fifth of the grandson’s share should be paid to such child, or to his lawful issue.

The plain intent of the testator as to his son, Charles H. Benner, and his daughter, Frances EL Duelos, was that their share of the testator’s estate was to be held in trust during their lives, while as to his three unmarried daughters, their share was to be paid to them on their marriage, or upon their arrival at the age of twenty-one.

And I think it was also his intention that the one-fifth of the grandson’s share should be disposed of in the same manner.

No other construction will give effect to the words “ in the same manner as hereinbefore provided,” for if the testator had intended that the estate should be simply divided among his children those words were superfluous.

As by this construction of the will the estate of the trustees in the shares of the son, Charles H. Benner, and Frances Duelos had not terminated, and as the judgment of the court below directed them to pay absolutely to the two sons the trust estate, I think they had a right to appeal from the judgment directing such payment

It is not necessary to determine what effect this construction will have upon the trust fund of $30,000 for the benefit of the testator’s widow. When that fund is to be distributed after the death of the widow, the question as to its distribution can be determined.

I think, therefore, the judgment should be modified so as to provide that the trust as to the share of the grandson continue until the children of the testator or their lawful issue would be entitled to receive the one-sixth of the estate held for them respectively, and as so modified, affirmed, with costs to the plaintiffs and the defendant executors to be paid out of the estate.

Yah Brunt, P. J., and Daniels, J., concur.  