
    Harriet Doremus Reeves, Respondent, v. John Augustus Snook and Others, Defendants, Impleaded with Mary Eliza Hyde and Others, as Executors and. Trustees of the Last Will and Testament of John B. Snook, Deceased, and Others, Appellants.
    
      Will—a direction that several shaves of the residue be deposited in bank and that, a specified sum be paid therefrom to designated beneficiaries for life with provision over, sustained—the surplus income, if any, passes to the persons presumptively entitled to the next eventual estate.
    
    The will of a testator provided as follows:
    “I give, devise and bequeath all the residue of my real and personal estate, owned by me, or that may hereafter come into my possession, to my executrix and my executors, with full power to dispose of the same. The proceeds thereof are to be paid to my children, my two grand-daughters (children of my deceased daughter Emily Cordelia Werrey), and to my adopted daughter Angeline Julia (wife of the Rev. Charles 1ST. Gleason), to be divided into ten (10) equal shares, and paid to them in the following manner: One share to each of my eight (8) children, May Eliza (wife of John M. Hyde), John Augustus, Maria Jane (widow of Edward Werrey), James Henry, Harriet Doremus, Samuel Booth, Sarah Antoinette (wife of John W. Boylston), and Thomas Edward. One share to -he equally divided between my two grandchildren, Maria Antoinette Werrey and Emily Gertrude (wife of Joseph W. Graham), both daughters of my deceased daughter Emily Cordelia Werrey, and one shave to my adopted daughter Angeline Julia Gleason. * * *
    “ The shares of my two daughters, Mary Eliza and Harriet Doremus, and of my adopted daughter Angeline Julia, after making the deductions aforesaid, shall be placed by my executrix and my executors, in separate deposits for each of them, in such Savings Banks or other institutions, as they, my executrix and my executors, may approve of, that pay interest on such deposits, making arrangements with such banks or institution by which Mary Eliza, Harriet Doremus, or her son Harry Whittingham Reeves, and. Angeline Julia or her daughter Mabel Winifred, can draw on said deposits as hereafter mentioned. Said Mary Eliza, Harriet Doremus and Angeline Julia .are each to draw Forty (40) Dollars per month, and no more on their respective shares of funds so deposited, commencing on or about the first of the third month after my decease, and until their decease, if there is sufficient funds deposited to do so.
    “If, in the case of Mary Eliza, her share should not be exhausted at her decease, the amount so unexhausted shall be equally divided between all the children then living of my deceased grandson, John B. Snook, Jr.
    “If, in the case of Harriet Doremus, her share should not be exhausted at her decease, her son, if living, may draw on said unexhausted funds, the sum1 of Twenty (20) Dollars per month, and no more shall be drawn on said unexhausted sum until his decease. If said share of funds are* then unexhausted, they* shall be equally divided between all the children then- living of my deceased grandson, John B. Snook, Jr.
    “If, in the case of my adopted daughter, Angeline Julia, her share should not be exhausted at her decease, her daughter, Mabel, if living, may draw on said unexhausted funds the sum of Twenty (20) Dollars per month, and.no more, until her decease ; if said share of funds are* then unexhausted, they* shall be equally divided between all the children then living of my deceased grandson, John B. Snook, Jr.
    “Should Mary Eliza, Harriet Doremus, or-her son Harry, or Angeline Julia, ■or her daughter Mabel, die before the respective shares are exhausted, the funeral expenses of each shall be paid from the respective shares, not to exceed One hundred and seventy-five (175) Dollars for each funeral.
    “The share of my estate for each, Mary Eliza, Harriet-Doremus and Angeline Julia, are* to be deposited as aforesaid in trust, so they and children as named, can draw monthly the sums named and no more, at the times named, and are* to be paid to the children of my deceased grandson, John B. Snoók, Jr., as follows: That for Mary Eliza, share at her decease and funeral expenses paid, that for Harriet Doremus, when she and her son are deceased and funeral expenses paid for both, that for Angeline Julia, when she and her daughter are both deceased and funeral expenses for both paid.”
    
      Held, that if the income of the shares given to the testator’s daughters Mary Eliza and Harriet Doremus and to his adopted daughter Angeline Julia amounted to more than forty dollars a month, the provisions of the will for the accumulation of such surplus would be unlawful;
    That the provisions of the will, limiting the income to be received by such two daughters and by the adopted daughter to forty dollars a month, should be upheld, and that the surplus income, if any, would pass to the persons presumptively entitled to the next eventual estate pursuant to section 53 of the Real Property Law (Laws of 1896, chap. 547).
    Appeal by the defendants, Mary Eliza Hyde and others, as executors and trustees of the last will and testament of John B. Snook, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of February, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, construing the will of John B. Snook, deceased, and directing his executors to pay over to the plaintiff a one-tenth part of the residuary estate.
    This is an action for the construction of the will of John B. Snook, deceased, brought by one of the children of the testator named in the 16th article of the will as Harriet Doremus (now Harriet Doremus Reeves).
    The controversy relates solely to said 16th article, which .is as follows:
    “ I give, devise and bequeath all the residue of my real and personal estate, owned by me, or that may hereafter come into my possession, to my executrix and my executors, with full power to dispose of the same. The proceeds thereof are to be paid to my children, my two grand-dáughters (children of my deceased daughter Emily Cordelia Werrey), and to my adopted daughter Angeline Julia (wife of the Rev. Charles H. Gleason), to be divided into ten (10) equal shares, and paid to them in the following manner: One share to each of my eight (8) children, May Eliza (wife of John.M. Hyde), John Augustus, Maria Jane (widow of Edward Werrey), James Henry, Harriet Doremus, Samuel Booth, Sarah Antoinette (wife of John
    
      W.' Boylston), and Thomas Edward. One share to he. equally divided between my two grandchildren, Maria Antoinette Werrey and Emily Gertrude (wife of Joseph W. Graham), both daughters of my deceased daughter Emily Cordelia Werrey,. and one share to my adopted daughter Angeline Julia Gleason.
    
      “ I direct that all the debts that may be due me by my children, including interest and compound interest, shall be deducted from their respective shares, and the debts due me from John M. Hyde, John W. Boylston and Charles H. Gleason, including interest and compound interest, shall be deducted from the respective shares of their wives.
    “ I also direct that my daughter Mary Eliza shall be paid Two Thousand (2,000) Dollars, my daughter Harriet Doremus, Fifteen [Hundred] (1,800) Dollars, and my adopted daughter Angeline Julia, Fifteen [Hundred] (1,500) Dollars as soon as practicable, after my decease, which amount shall be deducted from their respective shares.
    “ I also diréct that the monies that I have paid for Harry Whittingham Reeves (the son of. my daughter Harriet Doremus), including the debt that he now owes me, or may owe me for board since he was twenty-one (21) years old, at the rate of Four (4). Dollars per week, including interest and compound interest, also all legal debts owing by him or any debts that may be incurred by him or for him, with interest and compound interest, to the date of my decease, shall be paid and deducted from his mother’s share of my estate.
    
      “ The shares of my two daughters, Mary Eliza and Harriet Doremus, and of. my adopted daughter Angeline Julia,, after making the deductions aforesaid, shall be placed by my executrix and my executors, in separate deposits for each of them, in such Savings Banks or other institutions, as they, my executrix and my executors, may approve of, that pay interest on-such deposits, making arrangements with such banks or institution by which Mary Eliza, Harriet Doremus, or her son Harry Whittingham Reeves, and Angeline Julia or her daughter Mabel Winifred, can draw on said deposits as hereafter mentioned. Said Mary Eliza, Harriet Doremus and Angeline Julia are each to draw Forty (40) Dollars per month and no more on their respective shares of funds so deposited, commencing on or about the first of the third month after my decease, and until their decease, if there is* sufficient funds deposited to do so.
    “If, in the case of Mary Eliza, her share shohld-not be exhausted at her decease, the amount so unexhausted shall be equally divided between all the children then living of my deceased grandson, John B. Snook, Jr.
    “ If, in the case of Harriet Doremus, her share should not be exhausted at her decease, her son, if living, may draw on said unexhausted funds, the sum of Twenty (20) Dollars per month, and no more shall be drawn on said unexhausted sum until his decease. If said share of funds are* then unexhausted, they shall be equally divided between all the children then living of my deceased grandson, John B. Snook, Jr.
    “If, in the case of my adopted daughter, Angeline Julia, her share should not be exhausted at her decease, her daughter Mabel, if living, may draw on said unexhausted funds the sum of Twenty (20) Dollars per month, and no more, until her decease; if said share of funds are* then unexhausted, they* shall be equally divided between all the children then living of my deceased grandson, John B. Snook, Jr.
    “Should Mary Eliza, Harriet Doremus, or her son Harry, or Angeline Julia, or her daughter Mabel, die before the respective shares are exhausted, the funeral expenses of each shall be paid from the respective shares, not to exceed One hundred and seventy-five (175) Dollars for each funeral.
    “ The share of my estate for each, Mary Eliza, Harriet Doremus and Angeline Julia, are* to be deposited as aforesaid in trust, so they and children as named, can draw monthly the sums named and no more, at the times named, and aré to be paid to the children of my deceased grandson, John B. Snook, Jr., as follows: That for Mary Eliza, share at her decease and funeral expenses paid, that for Harriet Doremus, when she and her son are deceased and funeral expenses paid for both, that for Angeline Julia, when she and her daughter are both deceased and funeral expenses for both paid.”
    The court at Special Term held that the scheme by which the testator cuts down the absolute bequest of the shares bequeathed to the testator’s two daughters, Mary Eliza and Harriet Doremus, and «■the" share of' his adopted daughter, Angeline Julia, involved an unlawful accumulation of the income of each share, so far as that ¡income exceeded' forty dollars a month during the -first life, and ¡twenty dollars a month during the second; The trial judge expressed the opinion that this surplus income would go to the next of kin of the testator if the scheme were allowed to stand in part; •but he deemed it contrary to the intention of the testator to uphold any portion thereof, and, therefore, held that the whole scheme cutting down the absolute bequests must fall. From the judgment to this effect, and directing the payment to the plaintiff of her one-tenth part or share under the will, the executors and certain infant defendants have appealed.
    
      William H. Harris, for the executors, appellants.
    'Harrold I). Watson and Oha/rles Martin Camp, for the infant defendants, appellants.
    
      J. Harry Snook, for the respondent.
    
      
       Sic.
    
    
      
      
        Sic.
      
    
   Willard Bartlett, J. :

Inasmuch as the testator’s daughters, Mary Eliza and Harriet Doremus, and his adopted daughter, Angeline Julia, are to receive only forty dollars a month out of the shares allotted to them under the will, it -is -undoubtedly true that if the income of a share amounted to more than forty dollars a month, the accumulation of surplus over and above that sum would be unlawful. In that event, however, such surplus would go not to the next of kin, as stated in the Special Term opinion on the authority of Hull v. Hull (24 N. Y. 647), but “ to the persons presumptively entitled to-the next eventual estate.” (Real Property Law, § 53.) The case of Hull v. Hull (supra), so far as that decision applies to the question under consideration, is overruled by Cook v. Lowry (95 N. Y. 103).

We are not able to concur in the conclusion reached by the learned judge in the court below to the .effect that the whole scheme of the will with reference to these two daughters and the adopted daughter, so far as it cuts down the absolute bequest to each of them, must be permitted to fail. The doctrine of Benson v. Corbin (145 N. Y. 351), that an. absolute devise .will.not be cut down or lessened by subsequent words which are of an ambiguous or doubtful meaning, does not apply to a case in which the limiting provision is clear and definite. (Kurtz v. Wiechmann, 75 App. Div. 26.) In the case at bar the learned trial .judge thought that “if the cutting-down provisions of this will be reduced to that which is legal, it is at least doubtful that the testator had any such intention as such reduced provisions express.” It seems to us tolerably clear, however, that no violence will be done to the intention of the testator if the provisions of the will limiting the income to be received by the two daughters and the adopted daughter to forty dollars a month shall be upheld to that extent, allowing the surplus income, if there is any accumulation, to go to the persons presumptively entitled to the next eventual estate. The language of the 16th article in reference to these shares ■ shows clearly that the testator did not contemplate the possibility that the income from any one of these shares would exceed the monthly payment for which he provided; because in each case he directs what shall be done with the share in case it should not be exhausted at the decease of the first beneficiary. He, therefore, plainly had in mind the probability that the principal of each share would have to be drawn upon in order to yield forty dollars a month to the beneficiary.

We see no difficulty in regarding the bequest of each of these shares as in effect a bequest to pay' an annuity to each of the beneficiaries, which is not invalidated by the fact that the payment of the annuity may not absorb the whole income. (Cochrane v. Schell, 140 N. Y. 516.) There is nothing in the case to suggest that the apparent purpose of the testator is a mere cover for an unlawful accumulation; and that purpose, it seems to us, can only be carried, out. by permitting the monthly payments to be made and decreeing a distribution of the surplus income, if there shall be any, to the persons presumptively entitled to the next eventual estate.

The judgment should be reversed, and the appellants should have judgment construing the will in accordance with the views expressed in this opinion.

Woodward, Hirschberg, Jenks and Hooker, JJ., concurred.

Judgment reversed, with costs, and judgment directed for the appellants, in accordance with the opinion of Bartlett, J. 
      
      Laws of 1896. chap. 547. —[Rep.
     