
    Gould v. Rutherfurd, Individually and as Trustee, etc.
    (Supreme Court—New York Special Term,
    December, 1893.)
    By the will of M. the hulk of his estate was bequeathed to trustees in trust, to pay over the income in equal shares to his two sisters. Upon the death of the last surviving of them he directed the principal to be given to certain residuary legatees. One of the sisters died. Held, that the portion of income payable to her, had she survived, goes to the person or persons entitled to the next eventual estate, i. e., the residuary legatees, and not to the surviving sister nor to the next of kin on the assumption of intestacy ; nor can it be accumulated.
    Action for construction of a will.
    
      Hoadley, Lauterbach & Johnson, for plaintiff.
    
      John Vernon Bouvier, Jr., for defendant John A. Rutherfurd, as trustee.
    
      
      Benjamin Tuska, for defendants William Walton Rutherfurd and another.
    
      Foster & Thomson, for defendant Louisa Myers.
    
      Hamilton R. Squier, for defendant Maria Delia Moss and others.
   Lawrence, J.

Alfred G. Myers died on the 4th day of March, 1887, leaving a will, which was subsequently admitted to probate by the surrogate of the city and county of New York. That will contains the following provision:

“ After the payment of the specific legacies hereinafter bequeathed, I give, devise and bequeath all my personal property of whatever kind, and also the proceeds of. my-seat in the Stock Exchange, except as hereinafter .disposed of, to Richard King, R. Baring Gould, J. Champlin Morris and John A. Rutlierfurd, in trust, to collect, invest and reinvest the same, and pay the income thereof in equal shares to my sisters, Matilda Myers and Louisa Myers, and I direct that my executors shall receive the compensation allowed by law, and that no bond or other security be required of them or either of them for the proper performance of their duty.-
“ At the death of the last surviving of my.sisters I direct that one-half of the principal of my estate be .given to my friend and partner, John A. Rutlierfurd, forever, and that the other or remaining half shall be given to William Walton Ruth erfurd forever.”

The testator’s sister Matilda Myers died on the 4th day of June, 1889, and the defendant Theodore A. Myers was, on the 19th day of November, 1889, duly appointed the adminis^ trator of her estate by the surrogate of tlie county of New York.

■ The testator’s sister Louisa Myers was, after her brother’s death, declared by proceedings in this court to be of unsound mind, and the defendant John W. Thompson was duly appointed the committee of her person and estate. .

The complaint alleges that since the death of Matilda Myers, plaintiff and his cotrustees have heen in doubt as to. whom the income which would have accrued to her, had she survived, should be paid, whether to John W. Thompson, as committee of the estate and person of Louisa Myers, or to Theodore A. Myers, as administrator of the goods, etc., of Matilda Myers, deceased, or one-third to said Theodore A. Myers, individually, one-third to the children of Myer S.. Myers, and one-third to said John W. Thompson, as committee as aforesaid, or to the remaindermen under the will, or allowed to accumulate and to form a part of the principal of' the estate; and in respect to these matters plaintiff desires the construction and direction of the court.

I think it is clear that the income which would have gone to Matilda Myers, if she had survived, does not go to Louisa Myers. The trustees are directed to invest and reinvest the personal property mentioned in the will and to pay the income thereof in equal shares to the sisters. There is nothing in the will to show that upon the death of one sister the surviving sister was to receive the income arising from the share of the deceased sister. As to that the will is silent.

The Messrs. Eutherfurd are entitled to the. ultimate, absolute ownership of the property upon the death of the last, surviving sister, and it seems to me that, under the provisions, of the Eevised Statutes, the will being silent as to the disposition to be made of the income upon the death of one sister before the other, they, as the owners of the residuary estate, u are entitled to the income arising after the death of the deceased sister.

Section 40 of article 1,'title 2, chapter 1 of part 2 of the Eevised Statutes, provides that: “ When, in consequence of a valid limitation of an expectant estate, there shall be a suspense of. the power of alienation, or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.” 4 E. S. (8th ed.) 2435.

And by section 2 of title 4 of part 2, chapter 4 of the Revised Statutes, it is provided that: “ In all other respects, limitations of future or "contingent interests in personal property shall be subject to the rules prescribed in the first chapter of this act in relation to future estates in lands.”

This places personal property upon the same footing as estates in the real property, and section 40, above noted, is applicable, therefore, to the case at bar, and the income arising-from the share which would have gone to the deceased sister, in my opinion, belongs to the Messrs. Rutherfurd as the persons presumptively entitled to the next eventual estate.

Judgment accordingly.  