
    In the Matter of the Judicial Settlement of the Accounts of Horace G. Young, as Trustee, under the Will of Thomas Cornell, Deceased.
    
      (Surrogate’s Court, Ulster County,
    
    
      Filed March, 1898.)
    1. Trusts — Eight or Executor of Beneficiary.
    The tiijie -when the right of the executor of a beneficiary entitled to a per cent, of net income to recover an apportioned part of the income accrues is when the last payment in which such beneficiary would be interested has been made.
    2. Apportionment — Death of Beneficiary.
    On the death of a beneficiary under a trust, her executor is not entitled to all the income earned but not due or collected at the time of her death, but such income is subject to its proportionate share of the expenses of the original estate, including taxes.
    Judicial settlement of the accounts of a trustee.
    H. 0. Soop, for executor and trustee; A. T. Clearwater, for Mary Augusta Coykendall and others, and Samuel D. Coyken-■dall, as general and special guardian of Eobert B. Coykendall and Frank Coykendall, infants; Cardozo Brothers, for Nellie L. Carpenter and Catharine Ann Cornell; also, for Nellie L. Carpenter, as executrix, etc.
   Betts, S.

On February 23, 1897, the trustee herein filed his verified petition asking for a judicial settlement of his ac■counts, and upon the same day a verified account was filed in ■this court, bringing the account as such trustee down to February 1, 1897.

.. Objections to various items of the account were filed on ¡behalf of Catharine Ann Cornell, who at that time was entitled to 90 per cent, of the net income of said estate. Hearings were had, and adjournments taken, until May 15, 1897, when, the said Catharine Ann Cornell died in this county, leaving a last will and testament, which was subsequently admitted to probate, and appointing Nellie L. Carpenter, her daughter, as the executrix thereof. Mrs. Carpenter duly qualified, and letters testamentary were issued to her, and she came in and was made a party to these proceedings as such executrix. On'June 1, 1897, a supplemental, verified account of the trustee, showing the receipts and disbursements of the estate, up to and including the 15th day of May, 1897, was filed in this court. Objections to that account were filed by Nellie L. Carpenter, both individually and as executrix of the will of Catharine Ann Cornell, deceased. Various large payments of income being due the estate in July and August, a second supplemental account was filed by the trustee on the 1st day of September, 1897, which, brought the accounts from and including the 16 th of May, 1897, down to and including the 31st day of August, 1897. To this supplemental account various objections were also filed by Mrs. Carpenter, individually, and as such executrix.

Hearings have been had from time to time, and adjournments and corrections of the various items in these accounts have been, made by the trustee, so that now there are only two principal items-of objections for me to pass upon, the others having, from time to time, by suggestion of the court, or agreement of counsel and trustee, been disposed of, with the exception of various objections in which this court has been asked to change its former rulings and which are hereinafter- more-fully referred to.

The will of Thomas' Cornell, so far as is necessary to. be quoted for a proper disposition of the questions at issue here, after devising the estate to trustees therein named, during the continuance of two lives in being, provides as follows:

“ 4th. To pay over unto my said beloved wife Catharine Ann for her own sole use, benefit, and disposition, during the period of said two lives ’ if she shall, -live so’ long, or if not; during her natural life, ninety (90%) per cent, of the net income of my said estate in lieu of dower or of any'rights she may have in any or to any part of my estate except as herein provided, the remaining ten (10%) per cent, to revert to my estate.
“ 5th. If my said wife should not. survive said ‘ two lives/ but should die before either or the last of said ‘ two lives,’ then at her death, to pay over unto my two daughters Mary Augusta and Nellie L. to each one-half of the income heretofore directed to be paid to my said wife, to-wit: forty-five (45%) per cent, of the net income of my said estate to each of my said daughters, share and share alike, during the period, or the remainder of the period, of said two lives.’ ”

The principal item in dispute between Mrs. Oarpentér, as ex-eeiffrix of Catharine Ann Cornell, and the remaindermen and Mrs. Coykendall is as to what part, if any, of the income of the estate up to May 15, 1897, the date of Mrs. Cornell’s death, earned, but not due nor collected by the trustee at that time,, should be paid to Mrs. Carpenter as executrix of Catharine Ann Cornell’s will.

This contention must now be settled by the provisions of .section 2720 of the Code of Civil Procedure. That section is as-follows:

“ All rents reserved on any lease made after June 7, 1875, and all annuities, dividends and other payments of every de^ scription made payable or becoming due at fixed periods under any instrument executed after such date, or being a last will and testament that takes effect after-'such- date; shall be apportioned so that on the death of any person interested in such rents, annuities, dividends or other snob payments, or in the estate or fund from, or in respect to which the same issues or is derived, or on the determination by any other means of the interest of any such person, he, or his executors, administrators or assigns shall be entitled .to a. proportion of such rents, annuities, dividends and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof, as the case -may be, including the day of the death of such, person or of the determination of his or her interest, after making allowance and deductions on account of charges on such rents, annuities, dividends and other payments. Every such person or his executors, administrators or assigns, shall have the same remedies at law and in equity for recovering such apportioned parts of such rents, annuities, .dividends and other payments, when the entire amount of which such apportioned parts form part, become due and payable and not before, as he or they would have had for recovering and obtaining such entire rents, annuities, dividends and other payments, if entitled thereto; but the persons liable to pay rents reserved by any léase or demise, or the real property comprised therein shall not be resorted to, for such apportioned parts, but the entire rents of which such apportioned parts form part must be collected and recovered by the person or persons who, but for this section, or chapter 542 of the Laws of 1875, would have been entitled to the entire rents; and such portions shall be recoverable from such person or persons by the parties entitled to the same under this section. This section shall not apply to any case in which it shall be expressly stipulated that no apportionment be made, or to any sums made payable in policies of insurance of any description.”

It is contended by Mrs. Carpenter, as executrix, that all income except dividends on stock owned by the State, earned, but not due nor collected prior to and including May 15, 1897, should be paid. to her by the trustee without any deductions therefrom. It is, on the other hand, contended by Mrs. Ooy-kendall and her children, that the sum due the estate of Mrs. Cornell, if any, could only be ascertained at the close of the fiscal year, and that the portion of income earned, but not collected, should bear its just proportion of the expenses of the estate.

It was shown upon the hearing, that the last payment of interest to the trustee which included any part of the interest earned prior to the death of Mrs. Cornell, was due and payable March 1, 1898, and the one prior to that was due and payable February 20, 1898. I am informed that the entire amount of payments in which Mrs. Cornell's estate could be interested have been collected by the trustee.

We have seen that the statute provides that “ Every such person or his executors, administrators or assigns shall have the same remedies at law and in equity for recovering such apportioned parts of such rents, annuities, dividends and other payments, when the entire amount of which such apportioned parts form part become due and payable and not before, as he or they would have had ... if entitled thereto.” That' time would seem now to have arrived, since the last payment in which Mrs. Cornell's estate is interested has been made. No good purpose could be served by requiring the executrix of Mrs. Cornell’s estate to wait any greater period, and it is in every way •desirable that the trustee should understand the proper method to make up his accounts, and to whom the income from said estate should be payable.

The ordinary expenses of the estate, for repairs, clerk hire, ■etc., are about the same amount from month to month. It so-happens, however, that since the death of Mrs. Cornell, the taxes for an entire year have been paid upon the estate. It may be that some trifling amount for school taxes will have to be paid before May 15, 1898, but that is unlikely, and if so, the amount would be trivial.

It would be manifestly improper in making an adjustment between the conflicting rights of the estate of Mrs. Cornell and Mrs. Carpenter and Mrs. Coykendall, the present life tenants, to place the entire amount of those taxes as part of the expenses of the ten months, when they were in reality for the protection of the estate during an- entire year. Indeed, the point is made by Mrs. Carpenter as the executrix that the portion to which her mother’s estate is entitled should not bear any part of the taxes. This cannot be maintained. Had Mrs. Cornell lived, the income earned by the estate would first have paid all the expenses of the estate, including all taxes, and 90 per cent, of the remainder would have been paid her under the provisions of the will. No reason has been shown for any greater exemption to her estate than she would have received if living. The taxes paid by the estate are so adjusted for past expenses and anticipated payments, that any adjustment is difficult. Probably the principal fixed items are for interest on county and municipal indebtedness, which had been running from March 1, 1897, to the date of Mrs. Cornell’s death, and have of course been accumulating ever since. The amount due Mrs. Carpenter as executrix of Mrs. Cornell’s will should at least bear its proportion, with the other income of the estate. Taxes must be paid, and property receiving the benefit therefrom must bear its due proportion.

Since the entire amount of income in which Mrs. Cornell’s estate is interested has now been received by the trustee, it is proper that he should file his account so that the parties interested and the court may know the present condition of the account, and be able to malee an intelligent division of the income. The trustee may file a supplemental account to and including the 15th day of March, 1898. That makes ten-twelfths of a year from May 15, 1897, the date of Mrs. Cornell’s death. An equitable division-may then be had of the income between the executrix of Mrs. Cornell’s will and Mrs. Carpenter and Mrs. Coykendall, the present life tenants, as follows:

From the gross income from May 15, 1897, to March 15, 1898, ten months, deduct all expenses properly chargeable to income except the taxes. As we have shown that the taxes for the entire year have been paid, ten-twelfths of the total amount of taxes paid upon the entire estate may also be deducted. The remainder, after deducting all said expenses, trustee’s commissions, and ten-twelfths of the taxes from the gross income, will be the net income for those ten months. Ten per cent, of that net income should be set aside to revert to the estate of Thomas Cornell. Then compute the amount of income (not including any dividends on stocks owned by the estate) which was earned, but not collected by the trustee on May 15, 1897, less 10 per cent, thereof. Deduct from that such proportion for the expenses of the estate for the ten months less two-twelfths of taxes paid, as this income bears to the remaining income for the ten months, less 10 per cent, thereof, and the remainder thus found will be the income due Mrs. Cornell’s estate, and shall be at once paid to Nellie L. Carpenter, executrix of Catharine Ann Cornell’s will, in full for her interest in the estate of Thomas Cornell. Such part of the remainder of the income, after deducting two-twelfths of the taxes as the trustee may deem prudent, shall be equally divided between Mrs." C'oykendall and Mrs. Carpenter.

There seems to be no reported case construing section 2720 of the Code of Civil Procedure in which the facts are similar to the one at bar. I have given the subject careful examination, and the conclusions here arrived at are in accordance with the plain reading of the section. Some of its provisions are opposed to the principles of the common law. 2 Perry on Trusts, sec. 556; Clapp v. Astor, 2 Edwards Ch. 379; Kearney v. Cruikshank, 117 N. Y. 95. It seems framed to fully meet a case similar to the one before me. Its provisions are clear, and I have construed it accordingly.

Some of the income of this estate is also apportionable under the provisions of the common law, aside from section 2720, suck as interest on bonds and mortgages and other securities. U. S. Trust Co. v. Tobias, 21 Abb. N. C. 393.

Various objections have been made to this account, which were fully passed upon by me at the last hearing in this estate, and reported in 17 Misc. Rep. 680, and subsequently affirmed by the Appellate Division, 15 App. Div. 285; 44 N. Y. Supp. 585, with the exception of extra compensation to the trustee, which was reversed by a divided court.

I see no reason for changing my former ruling. Both sides have apjoealed to the Court of Appeals, and the matter is there for determination. Evidence has been introduced showing the situation more in detail than was done on a former hearing, but no new facts have been adduced, nor new reasons given for any different determination by this court.

I adhere to my former decision, and a decree may be entered as to those disputed questions in accordance therewith.

An objection is also made on behalf of Mrs. Carpenter that more than 10 per cent, of the net income of the estate has been .passed to the credit of the principal estate by the trustee. That .claim does not seem to be well founded. Computations of an expert, are submitted to sustain this contention, but, as not un-frequently happens, the expert bases his estimates on incorrect data, which, of course, makes his results differ from the trustee’s, and from the truth. The expert accountant apparently bases his contention on paragraph VI of the decree of September 8, 1896, in this estate, which is as follows:

“ The testator in the fourth subdivision of his will having directed that 10 per cent, of tire net income of his estate should revert to the principal estate, it is further ordered, adjudged and decreed, that 10 per cent, of the net income of the estate from the 30th day of June, 1894, is the sum of $4,500, and that that sum revert to and become the property of the principal estate.” But paragraph VI should be- read in connection with paragraph XII, which is as follows:

It is further ordered, adjudged and decreed: That out of tbe said moneys so belonging to tbe meóme account of tbe said estate, tbe said trustee do pay to tbe principal estate, and credit to tbe principal estate account, tbe said sum of $4,500, tbe 10 per cent, of tbe net income of tbe said estate from tbe BOtb day of, June, 1894, as stated in tbe sixth subdivision or paragraph of this decree, and that be do further pay-to and credit tbe said principal estate account with tbe further sum, of 10 per cent, of the net income of tbe said estate, from the time to which 10 per cent, of the net income of said estate amounted to the said sum of $4,500; such lasfimentioned payment to be made by the said trustee in tbe due administration of the said estate.” Tbe facts are, that during tbe time covered by that decree $45,000 bad been paid to Mrs. Cornell, and as tbe will directs that 90 per cent, of tbe income shall be paid her, and tbe remaining 10 per cent, revert to tbe estate, it was provided by that decree that tbe trustee should pay $4,500 to the principal estate, and as some expenses charged to income by the trustee were directed to be charged to the principal estate by the court, it left some additional income to be paid to the widow, Mrs. Cornell, and to revert to tbe principal estate. This was evidently what the last part of paragraph XII of the decree was intended to cover in addition to equalizing tbe payment of $45,000 to Mrs. Cornell. However, $45,000 is 90 per cent, of $50,000, and 10 per cent., thereof is $5,000. Mrs. Cornell has bad $45,000, but only $4,500 has been credited to principal estate, so instead of tbe trustee paying to tbe principal estate too much, be should really pay $500 more to comply with tbe provisions of paragraph XII of that decree and with tbe will of Thomas Cornell.

My attention may be called to some part of tbe accounts now before me where this has been done, but I have failed to find it, and my understanding of tbe latter part of paragraph XII was that the trustee under its provisions was to pay sufficient to tbe principal estate to equalize tbe 90 per cent, paid to Mrs. Cm nell. Tbe trustee in his account will, therefore, credit the principal estate with $500 from tbe income account.

It may easily be that some objection not satisfactorily settled or withdrawn has been overlooked by me 3 if so, upon my attention being called to it, I will pass on it at once.

A decree may be handed up in accordance with this memorandum.

Decreed accordingly.  