
    Robert E. Dunham, Plaintiff, v. John A. De Raismes et al., Defendants.
    (Supreme Court, New York Special Term,
    February, 1898.)
    When an annuity, not charged on realty, does not lapse upon a diviX sion directed, to be made.
    ■ ' Where the will of a testator of large means, although falling expressly ■ to charge upon his real estate a small annuity given to an executor for life, devises his residuary real estate to his executors with directions to them to pay the annuity out of the rents and profits and also to invest any surplus income, a further provision that all the real estate should be divided among his children and grandchildren when a certain child named should reach majority is not, in the absence of proof that there is no surplus income applicable to the payment of the annuity, to be taken as fixing the date when it shall cease, and the evident intention of the will that the annuity shall continue during the life of the executor will be respected.
    ■ Action for the construction of a will. . '
    Saunders, Webb & Worcester, for plaintiff.
    Parsons, Shepard & Ogden, for defendants.
   Russell, J.

The payment of an annuity of $300 a year to the plaintiff from the estate left by the-deceased, John F. J. De Baismes, is resisted by the defendants, as affirmatively averred in the answer on the grounds that the property of which the testator died seized consisted of real estate devised, subject to the payment of the annuity to his wife, to his children and grandchildren, when his'son Francis John Joseph De Baismes should arrive at the age of twenty-one years, or at his decease prior thereto, and to be then divided; and that the annuity to plaintiff was not made a charge upon the real estate subsequent to the time the said Francis John Joseph, arrived at the age of twenty-one years.

The testator left a lar^e fortune and the will hears the easy tone of confidence that, after the payment of the debts, all the specific legacies and devises would pass to the beneficiaries according to the terms of the will; and there is no evidence that this confidence was not justified, or that, at the. death of the testator, there was not sufficient personalty and realty, with a capacity in the latter to earn sufficient rents and profits, to accomplish the testamentary wishes of the testator, as' these different classes of property were blended in his testamentary disposition. In effectuating the purposes of the testator and seeking to find Ms primary and paramount intention, the element of an insufficient personalty to pay Ms debts is eliminated, from the case, so- that-it becomes one purely of consideration as to the effectiveness of Ms legacies and devises.

The will evinces certain specific purposes and certain general ones in those bequests and devises. After -bequeathmg to his wife the household furniture and appurtenances, it gives an annMty to her of $4,800 during her natural life, to be paid in quarter-yearly payments, .and charges the rents and profits of his improved real estate in the city of New York, during her life, for the payment of the annMty. He devises to her for life Ms farm and appurtenances for a home for herself and his infant children, and the remainder to Ms children and grandchildren. He bequeathes to his son-in-law, the plaintiff Robert E. Dunham, an annuity of $300 during his natural life, to be paid by his executors in quarter-yearly payments during that period. All the rest of Ms real estate, mot thereinbefore devised, he gives to his children and grandchildren, and provides that when his son Francis John Joseph arrives at the age of twenty-one years, or- at his prior decease, such residuarv real estate shall be divided between the children and the grandchildren. He directs the executor to take charge of all Ms real estate so residuaxily devised, and receive the rents and profits, pay taxes, the annuity given to the plaintiff and necessary expenses, crediting to each of his children and grandchildren yearly an equal share of the balance: but directing that such portion as should not be reqMred for their support should be applied by the executors to making improvements by building or otherwise upon his real estate in the cities of New York and Brooklyn to the best advantage. Upon a division of the real estate, the accounts with the children and grandchildren should be adjusted and equalized and each charged an equal share of .the. moneys applied for improvements. All the rest of his personal tv is given to his cMldren and grandchildren, to be eciually .divided. He directs that a capital business advancement of $20,000' to two of Ms sons be charged to them in the distribution, and that John Adolphe, the surviving son of the two so advanced, until the adjustment and accounting before referred to, pay- interest on $10,000- of such capital sunl at 6 per cent, for the use of ■ the two grandchildren, the children of the deceased son, and that at the- time of the adjustment and accounting, John Adolphe account for $10,000 of such capital sum, for the use- of said two grandchildren. He provides for the surplus income of the rents and profits of his entire estate by direction for their investment on bond and mortgage until the adjustment and accounting. The plaintiff, Robert E. Dunham, was named as one of the executors, but was removed for some cause, not apparent, prior to the time reached for the division referred to in the will.' .

The case seems to be one which does not even present a question of inadequacy of any of the funds devoted to that purpose for the payment of the legacies, but rather a case where it is assumed that the personalty was distributed before the period of final division, and, nothing being left but real estate, whether that shall be followed into the hands of the devisees to enforce the further payment of the annuity which ceased to be paid on the 17th day of September, 1882, when the son Francis John Joseph De Raismes became of age. It is not apparent, however, that such a distribution was effectively made and the evidence is meager upon the subject. . *

Trying to effectuate the intentions of the testator so that its purpose may not fail of achievement, where means are adequate, the general rule does not compel the strict adherence to the words contained in the testament, but the whole will may be construed to ascertain whether the testator limited the legacy or intended it to go to- the legatee at all events. Pierrepont v. Edwards, 25 N. Y. 128; Delaney v. Van Aulen, 84 id. 16.

The testator gives to the plaintiff 'an annuity of $300 per year to be paid .during his natural life. That purpose will "be defeated if the life payment is shortened, by force of the testator’s ineffective language, to a shorter term. If distribution of the personalty was made before the annuity payments, ceased it was so done without provision for the capitalization of a sum sufficient to provide for the annuity and a sufficient amount, viz., the sum of $10,000 was, by the design of the will, left to the period of division of the real estate. , The annuities both to the wife and the plaintiff were to be currently paid out of the rents and profits; but no intimation is contained in the will that those payments were to cease upon the division of the property among the children and grandchildren. And a contrary intent is evident from the careful direction to vest surplus income in improvements on the real estate to the extent desirable, and the surplus over that expenditure to accumulate in bonds and mortgages. The naming of the plaintiff as one of the executors too, to the mind of the testator, gave him the practical power to see that sufficient provision was made for the payment of annuities during the term of their lives; and the subsequent removal of the plaintiff as executor, before the period of division, was .an event not foreseen by the testator in making the will. The personalty, the rents and profits and the realty are so blended in this will, ¡construed as a whole, that it is apparent that the testator did not intend residuary legatees and devisees to receive the shares going to them, except as distributions remaining after the specific purposes of the will were accomplished. It is conceded that the wife’s annuity should be paid, even after the division, as a charge upon the realty; and though the language of the will is more specific in regard to her than the son-in-law, as her legacy was of far greater importance, yet the purpose of the continuance of both annuities, during the life of the beneficiaries, seems to be the same as to' each.

I look in vain through the will to find any purpose of the termination of the legacy before the death of the plaintiff. I find in the whole theory of the will,- as exhibited in the clauses bequeathing and devising the rest of his property, and in the evident assumption of plenty of means for the purpose of paying Ms annuities, sufficient grounds to believe that the testator’s plainly declared gift of an annuity for life was not intentionally shortened by him in the other clauses of the will. ' ♦

It may be that the surplus rents and profits, including that wMch went into the real estate for improvements, was sufficient to provide a fund to pay the annuity to the plaintiff; and if not, that the personalty was more than sufficient. It needs a farther inquiry in this action, by reference or otherwise,, to determine whether it shall be necessary to resort to the real estate now in the hands of the general devisees. Judgment is, however, awarded that the plaintiff’s annuity from the 17th of September, 1882, with interest from the periods when the payments respectively became due, be a charge upon the personal and real estate left by the testator and existing on said 17th of September, 1882, and that a reference be awarded to ascertain .out of what fund and from what defendants the same shall be paid, in order to carry the interlocutory judgment into effect.

Ordered accordingly.  