
    Harmon Hendricks, Individually and as Substituted Trustee under the Last Will and Testament of Charlotte Gomez, Deceased, Respondent, v. Albert Hendricks and Others, Respondents ; Rebecca Samuel and Others, Appellants.
    
      Will — accumulations of the income of a trust fund — when the title thereto rests in the cestui que trust during whose life-it accumulates.
    
    In an action brought by the plaintiff as a trustee under the will of Charlotte Gomez for an accounting,, a question arose as to who was entitled to certain accumulations of the income, of a trust fund. By the first clause of her will Charlotte Gomez gave to her executors the sum of $13,000, to be held by them in trust, to apply the income to the support of her daughter Matilda during ■ life; by the second clause of her will she devised the residue of her estate to her executors in trust to pay over the income to her daughter Emeline; by the fourth clause she provided that in case Matilda survived Emeline, and Emeline left no issue, all the property'so held in trust for Emeline should be held by her . executors in trust to apply the rents, income, dividends and profits “ of all and singular the same ” to the support of Matilda during life, and after her decease to convey it to the children and lawful heirs of Harmon Hendricks, a brother of ■the testatrix. Emeline died before Matilda, who was at the time her mother made her will and until her own death, in 1893, an inmate of an insane asylum, and. after the death of Emeline there was a considerable accumulation in the hands of the trustees of income not necessary to the support of Matilda.
    
      JELeld, that as the will contained no direction for an accumulation of income, and, as any such accumulation was forbidden except in the case of a minor, the court would not indulge in any presumption that there, was an intention to . accumulate;
    That the accumulation should be paid over to the administrator of Matilda and did not pass as undisposed of income to the heirs of Harmon Hendricks.
    Appeal by the defendants, Rebecca Samuel and others, from a judgment of the Supreme Court in favor of the ¡ilaintiñ and of the defendants, Albert Hendricks and others, entered in the office of the clerk of the county of New York oh the 27th day of November, 1895, upon the report of a referee.
    The action was brought to obtain a judicial construction of the last will and testament of -Charlotte Gomez, deceased. The will of the testatrix was as follows:
    “ In the Name of God, Amen : I, Charlotte Gomez, widow of Benjamin Gomez, of the city of New York, deceased, being in good health of body, and of sound and disposing min’d and memory, praise be to God for the same, and being desirous to settle my worldly affairs while I have the strength and capacity for that purpose, do make and publish this my last will and testament, hereby revoking and making void all former wills by me at any time heretofore made. And first and principally, I commit my soul into the hands of my Creator, who gave it, and my body to the earth, to be interred at the direction of my executors and executrix, hereinafter named; and as to such worldly estate wherewith it hath pleased God to intrust me, after the payment of all just debts and funeral charges, I dispose of the same as follows:
    
      “ Imprimis. I give to my executors and executrix the sum. of twelve thousand dollars, now invested in the stock of the city of New York,- commonly known as the Croton water stock of the city of New; York, to be held by them in trust, to apply the yearly income and dividends thereof in and towards the support, maintenance and clothing of my daughter Matilda, during her natural life; charging on them, that while her unhappy state continues, that they carefully attend to her wants. and necessities in the said application of the said interest, income or profits, to her said maintenance, support and necessities. And as I deem the said twelve thousand dollars to be at present well invested, I desire and direct that no change be made of said investments, unless there should be great danger of loss, or some serious disadvantage from the present investment, but that the same remain invested as it now is, in the five per cent water stock of the city of New York, until the same be paid or otherwise liquidated, and that in such case of payment or liquidation of the said stock, that my said executors, and executrix ’shall then only invest it in stock known as the Croton water stock of like character as the present investment, or, if the same cannot be purchased, then in stock of the city of New York, or of the United States, or on bond, secured by mortgage on improved real estate, situated in the city of New York, of at least double the value of the amount so invested, the income of such new investment to be applied to the maintenance, support, clothing and necessities of my said daughter Matilda during her life.'
    
      “ Seeondl/y. I give, devise and bequeath unto my executors, all the rest, residue and remainder of my real and personal estate, wheresoever and whatsoever the same may be, in.trust, nevertheless,, to receive the income, dividends, interests, rents and profits thereof, and to pay the same, after deducting all necessary expenses, over as soon as received, unto my daughter Emeline, on her own proper receipt, to be for her use alone, and without the interference or claim of any husband she may have, or of any other person whatsoever. And in case she should die, leaving lawful issue, then to transfer, set over, grant and convey all and singular the said rest, residue and remainder of the said real and personal estate to such child or children of my daughter - Emeline, or his or her or their heirs arriving at the age of twenty-one years; to have and to hold the same to his, her or their use and behoof forever.
    “ Thirdly. In case my said daughter Matilda should die, leaving my said daughter Emeline her surviving, then I give unto my said executors the said sum of twelve thousand dollars, invested as afore.said, in the Croton water stock of the city of New York, the interest of which is to be applied to the support, maintenance and necessities of my said daughter Matilda ; the said twelve-thousand dollars to be and remain invested as aforesaid by this will directed, during the life . of my said daughter Matilda, and that the said twelve thousand dollars after her decease, to be held by my said executors in trust, with the rest, residue and remainder of my estate) as is hereinbefore provided, nevertheless to. receive the increase, dividends, interest and profits of the said twelve thousand dollars, with the increase, dividends, interests and profits of the rest of my said estate, and to pay the same to my said daughter Emeline on her own individual and proper receipt, to be for her use alone, and without the interference or claim of any future husband or any other person whatsoever; and in case she should die leaving lawful issue her surviving, then to transfer, set over, grant and convey all and singular the said stock and proceeds thereof to such child or children, or their heirs, on his or their arriving at the age of twenty-one years.
    “ Fourthly. -In case my said daughter Matilda should survive her sister Emeline, my -said daughter Emeline dying and leaving no child or children or their issue, descendants of her body her surviving, I bequeath and devise the real and personal property hereinbefore devised and bequeathed to be held in trust for my said daughter Emeline by my s^id executors, to my said executors to be held in trust, to apply the rents, income, dividends and profits of all and singular the same, to the support, maintenance, wants and necessities of my said daughter Matilda during her natural life, and after her decease to transfer, convey and set over all and singular the same my real and personal estate so left in trust to the children and lawful heirs of - my brother Harmon Hendricks, deceased, to share and share alike, per stirpes/ saving and reserving, however, both from this last bequest and devise, in trust for the use of my daughter Matilda, and the children and heirs of my brother Harmon Hendricks, in case my daughter Emeline should by her last will, or other lawful direction, dispose of the sum of five thousand dollars to be paid out of my said estate , so held in trust, after the decease of my said daughter Emeline, to such person or persons as she may deem proper.
    “ Fifthly. In case my said daughter Matilda should die after my daughter Emeline, I give and bequeath the said twelve thousand dollars in stock, or the investment and proceeds thereof, to the child or children of my said daughter Emeline, if she should leave child or children, or their heirs, on arriving at the age of twenty-one years; and in case she should die without issue, then I give and bequeath the said sum of twelve thousand dollars, as aforesaid directed, unto the children of my said brother Harmon Hendricks, the same to be divided as I have before directed, with respect to the property of my said daughter Emeline, and I direct my executors, holding the same in trust, to transfer and convey all the property hereinbefore bequeathed and devised, according to the true intent and desire of this my will.'
    
      “Sixthly. In case of the death of either of my executors, the trust of this will hereinbefore imposed on them not being fully concluded or discharged, I do will and direct that with the consent of my said daughter Emeline, in case she should be living, a new trustee be appointed in the place of the deceased executor; such appointment or nomination, however, to be examined into, ratified and confirmed by an application to some competent legal tribunal to be made for that purpose.
    
      “ Lastly. I do hereby nominate, constitute and appoint Aaron Gomez and Henry Hendricks of the city of New York my executors, and my said daughter Emeline my executrix, of this my last will and testament, to fulfill and execute the trusts hereinbefore com tided to them.
    “In witness whereof, I have on this.---day of February, in the year one thousand eight hundred and forty-eight, to this my last will and testament, contained on three half sheets of paper, set my hand and seal in manner following, that is to say, -at the end of each page I have set my hand by subscribing the same with my name, and last half sheet, I have signed and subscribed my name and set my seal.”
    
      Qeorg.e W. Wickersham, Joseph II. Adams, Alfred Lyons and Christian Q. Moritz, for the appellants.
    ■ S-. P. Nash, M. N. Cardoza, Edgar J. Nathan, Qratz Nathan and Edward 8. Eavfma/n, for the respondents.
   Rumsey, J.:

The plaintiff is a trustee under the will óf Charlotte Gomez, deceased, and he brings this action for an accounting as such trustee and that the court may declare who are entitled to the funds in his hands, his trust having determined, and to direct the payment of such funds to the proper person. There is no dispute as to tlie facts. - They are that-in the month of February, 1848, Mrs. Charlotte' Gomez made her will, and that she died on' the 1st day of December, 1849, and her will was admitted to probate. She was,' at that time, a widow with two daughters, one of whom, Emetine, died in 1885; the other, Matilda, died on the 6th day of December, 1893. The defendant Edmund Hendricks is the administrator of Matilda Gomez, and among the other defendants' are the heirs at law of Harmon Hendricks, a brother of Mrs. Charlotte Gomez.

It'appeared from the account of the plaintiff that, as trustee under the will of Charlotte Gomez, there was in his hands for distribution, besides the principal of the trust fund, something over $30,000, which had been saved out of the income since the trust was created. The question presented was whether, under the will of Charlotte Gomez, this saving belonged to Matilda Gomez,-the cestui que trust, and, therefore,, was to be paid over to her administrator, or whether it passed to the heirs at law of Harmon Hendricks under -one of the provisions of her will. The referee came to the conclusion that' this sum did not vest in Matilda Gomez during her life, but was undisposed of income, and passed to the heirs of Hannon Hendricks under the will. . The correctness of this conclusion is challenged by the administrator, and that presents the only question which is to be decided in this case.

The first clause of the will of Mrs. Gomez gave to her executor the sum of $12,000 invested in Croton water stock, “to be held by them in trust to a]iply the yearly income and dividends thereof in and towards the-support, maintenance and clothing of my daughter .Matilda during her natural life, charging on them, that while her unhappy state continues, that they carefully attend to her wants and necessities in the said application of the said interest, income of profits to her said maintenance, support and necessities.” By the second clause of the will she devised the residue of lief estate to . trustees to pay over to her daughter Emeline, with certain limitations, which are not material here. By the fourth clause, in cáse Matilda survived Emeline, Mrs. Gomez bequeathed all the property, real and personal, devised to be held in trust for Emeline, to her executors “ to be held in trust to apply the rents, income, dividends and profits of all and singular the same to the support, maintenance, wants and necessities of. my said daughter Matilda, during her natural life, and after her decease to transfer, convey and set over all and singular the same,-my real and personal estate so left in trust to the children and lawful heirs of my brother Harmon Hendricks.” Emeline, as has been seen, died before Matilda, and thereupon the trustees took the whole estate in trust for Matilda under the last provisions of the will. Matilda Gomez was an inmate of an insane asylum at the time of her mother’s death, and she continued in that condition until the time of her death in 1893." The income which was not necessary to be used for her support was deposited by the trustees, from time to time, in different savings banks in the city, where it remained and where it was at the .time this action was brought.

In concluding whether this income vested in Matilda Gomez absolutely as cestui que trust under this will, at the time when it was earned, as claimed by her administrator, it is necessary to ascertain what is the -intention of the testator, for in this, as in all other cases, the intention of the testator is the sole thing to be ascertained in -the construction of a Will. In looking for that intention-, which must be sought in the words of the will itself so far as may be, it is first to be noticed that in no one of the clauses of the will does the testator make any provision for an accumulation of income. In the first clause she provides for the payment of the income to the maintenance and support of her daughter Matilda. In the second. clause she requires the trustees to pay the income to her daughter Emeline. In neither clause does she make any provision .for the disposition- of undisposed of income. It is clear that she intended that Emeline should receive all the income of the trust fund created by the second clause of the will.. If she had a different intention as to the share of Matilda in the first clause, it is probable she would have said so. The amount of the trust fund disposed of by the first clause of the will is $12,000, which stands, as. she says, at five per' cent, the yearly interest- then being $600. - It was, quite clear that that sum was not much if any more than sufficient to meet the yearly necessities of her daughter Matilda, with such reasonable provision for contingencies as a careful person would - make, and there was every reason to suppose that all of that inco.me.-would b.e required for. the purposes -of the trust. As'a matter of fact, it appeared that for the thirty-six years during which Matilda received-only the income of this $12,000, and until the death of .Mrs.,, Adolphus, the surplus above what was required for her necessities with compound interest as allowed by the savings bank, amounted to only $2,100, so that it is quite clear that substantially the whole income was required. for Miss Gomez’ support. There is good reason then with regard to that fund why the testator should not have made any provision for the undisposed of income. But if she thought that the income of $12,000 would be sufficient to maintain her daughter in the asylum, she must have known that if Matilda outlived Emeline the income which her trustees would receive under the fourth clause of the will would be very much more than the sum required to supply-her simple wants in the asylum, and if she.had intended to make'any-different disposition of that increased income than: of the smaller income provided for by the first clause, she would Undoubtedly have done it, and as she did not do it it is fair to assume-that she-intended the income in each case to take the same direction.. - -. ■

Besides..that,we see in; looking at'the fourth clause that the devise over after the death of Matilda excludes the income and includes only the real and personal estate left in trust. If it was intended that the income should pass, certainly these words, which are practically words of exclusion of the income,- would not have been used. The fact that the income was more than sufficient for the wants of Matilda G-omez affords no inference that there was any intention to accumulate the income, because no accumulation of income is allowed except for one who is a minor at the time of the death of the testator, and no construction of the will which would admit of the intention to accumulate, can be indulged in in the face of the' rule that an intention which is contrary to the statute will not be inferred unless it is absolutely necessary to infer it. . (Van Nostrand v. Moore, 52 N. Y. 12; 2 Jarman on Wills [5th ed.], 773 ; Roe v. Vingut, 21 Abb. N. C. 484.)

By the terms of the trust in the first clause the trustees are directed to apply the yearly income to the support and maintenance of Matilda, and by the fourth clause they are directed tti apply the income, dividends and profits of all and singular the estate to the same purpose. It is contended on the part of the respondents that this provision gives to the trustee a discretion as to how much of the income of the trust estate shall be applied to the use of the cestui que trust. We do not think so. The direction in the will is to apply the yearly income; ” the rents, income, dividends and profits of all and singular ” the real aind personal property. These words leave no discretion in the trustee as to the amount of income which shall be applied, but they directly require the particular portion of the income specified in the will to be applied to the purposes for which it i^ intended. The only discretion in the trustee is a discretion as to the time and manner of the application. It was not left to their judgment to say whether or not she required all the income, nor whether a particular portion only should be devoted to that purpose, but the will expressly prescribed that all of it was to be applied to the purposes of the trust.

In the case of Bronson v. Bronson (48 How. Pr. 481) the trustees were directed to apply to the sole and separate use of the cesttd que trust the income of her portion of the estate, and the court held that under that provision the whole of the income vested in the daughter. In Beevor v. Partridge (11 Sim. 229), the will "bequeathed to ¡trustees .certain money for -the niaimtenanee, support and benefit of the testator’s three children, in -such shares and proportions and manner as the trustees should think proper, but the court in that case held that the whole income was to be given for the benefit of the children, and that the whole income belonged to them and the trustee had no discretion as to the amount -which should be applied. The same rule was laid down in the case of Webb v. Kelly (9 Sim. 469), and in the very recent case of Gasquet v. Pollock (1 App. Div. 512); The trust in that case was to collect and receive the income and apply the same to the use of my daughter Marie,” who was not of sound mind, and this court there held that the trustees had no discretion as to the amount of the. income which should be applied, but the title to the whole of it vested in the daughter.

- There are eases to be sure, some of which are referred to by the learned referee- in his opinion, in which it was held that the trustee had discretion as -to how much of the income should'he devoted to the purposes of the trust. But in each one of those cases the court decided u-pon the ground that the words used were apt to vest in the .trustee a discretion as to the amount of the income to be applied to the purposes of the trust. The case of Mcknight's Exrs. v. Walsh (24 N. J. Eq. 498) did not involve the question here- presented. In that case the devise -was he, my said executor, * * * appropriating and expending the legal interest arising and accruing from ■said sum toward the proper maintenance and education of such child or children.” The court held, not that the executor had discretion as to how large a portion of the income should be paid for the benefit of the children, but that it was not proper for a trustee to pay the whole interest -of the trust fund to the father of the children to be used for the benefit of the children, and thereby abandon all -exercise of his own discretion. The case does not bear at all upon the question presented here.

We have then this situation of affairs: That the income of the ■trust fund was to he used for the support, care and maintenance of Matilda Gomez, and that the whole of it was to be devoted to that, 'purpose, and that-the trustees were bound so to use it, at such time •and manner, as was for the best interest of the cestui que trust. Whenever such'ai-'case as that presents itself the rule is that the whole income vested in the cestui que trust. If it so vested, then certainly at her death it belonged to her administrator, and it did not pass to the heirs of Harmon Hendricks as undisposed of income. For this reason we have come to the conclusion that so much of the judgment as directs that the undisposed of income and its increase shall he paid to the heirs at law of Harmon Hendricks is incorrect, and the judgment must be modified by striking out that portion thereof and directing instead that the remainder of undisposed of income in the hands of the trustee, after paying the charges against it as directed by the judgment, should be paid over to the administrator of Matilda Gomez. The judgment is, therefore, modified accordingly, and as modified is affirmed, with costs to the appellants to he paid out of the funds in the hands of the substituted trustee.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.

Judgment modified as directed in opinion, and affirmed as modified, with costs to the appellants to be paid out of the funds in the hands of the substituted trustee.

Note.— The rest of the cases of this term will be found in the next volume, 4 App. Div.— [Rep.  