
    Waldo Grant Morse, as Executor, Etc., of Ruby Tilden Paine, Deceased, Plaintiff, v. Samuel J. Tilden, Jr., et al., Defendants.
    (Supreme Court, New York Special Term,
    July, 1901.)
    Will — Setting apart fund to produce a fixed income — Disposition of excess — Devise, when not cut down — Abatement of general legacies — Legatee forfeits legacy by testifying to the factum of the will.
    Where a will directs executors to set apart and invest so much of the testatrix’ estate as will produce an annuity of ten thousand dollars to her husband, the determination of the amount necessary' to be set apart is in the discretion of the executors, and the court should not interfere.
    
      If there is an excess of income, it should be distributed among unpaid legatees of the will.
    Where a testatrix, who owned a family plot, a pew and a homestead, as well as certain real estate, after specifically devising the proceeds of her real estate to her brothers and sisters, devised all her “ other ” real estate to her executors in trust “ for the execution of my will ”, with power of sale, the court considered that the first devise was not cut down, that the subsequent one related only to the plot, pew and homestead, and, further, that the proceeds of the latter were not thereby made applicable to the payment of the general legacies but would go to the brothers and sisters.
    Where the personalty is insufficient general legacies abate ratably.
    A subscribing witness forfeits his legacy under a will where he testifies to its execution.
    Action brought for the construction of the will of Ruby Til-den Paine.
    Frank Cochrane (L. L. Delafield, of counsel), for plaintiff.
    Edw. G. Whitaker, for defendants George H. and Augusta Tilden.
    Geo. L. Shearer, for E. T. Sabin and C. D. Sabin, and also guardian ad litem.
    
    Emil Goldmark, guardian ad litem for infant defendants G. A., A. M. and H. A. Tilden.
    George E. Coney, for defendant The Atlanta University.
    Rollins & Rollins, for, defendant Susan T. Sabin.
    J. J. Rollins, for defendants S. T. Sabin and C. B. Whittlesey.
    E. P. Wheeler, for Lebanon Society.
    W. H. Stryker, defendant, in person.
    A. S. Hutchins, for W. S. Paine.
    
      Cady & Delamater, for The National Hudson River Bank.
    Lemuel Skidmore, for defendant The Methodist Episcopal Society for Foreign Missions.
    Wm. T. Schley, for Henrietta T. Blatchford.
   O’Gorman, J.

Hnder the second clause of the will, it is quite clear that it is the duty of the executors to set apart and invest so much of the estate as will provide a net annual income of . $10,000, the annuity intended -for decedent’s husband. The lien of the annuity will affect only the particular fund set apart for that purpose, and the determination of the amount of the fund must be left to the trustees. Their decision involves the exercise of a discretion confided to them by the decedent, and should not be interfered with by the court. The annuity is to be paid out of the income, although the trustees may resort to the corpus of the fund to supply a deficiency when necessary. Should the fund produce an income in excess of the annuity, the surplus must be distributed among the legatees to the extent that their legacies remain unpaid. It will form part of the residuum only in the event of all other legacies having been previously discharged. By the sixth clause the testatrix expressly gaye the proceeds of her real estate to her brothers and sisters. This bequest was not impaired or diminished by the succeeding paragraph, which reads: “ Seventh. I give and devise all my other real estate to my executors in trust for the execution of my will, with power to sell and dispose of the same at public or private sale.” The first and sixth-clauses deal with the family plot at New Lebanon, the pew in the-Madison Square Presbyterian church and the homestead at New Lebanon, and the specific devises of these minor interests explain the words other real estate ” in the. seventh paragraph. It was-evidently the intention of the testatrix that the executors should have the power to sell the real estate not specifically devised and distribute the proceeds as directed by the last paragraph of the-immediately preceding clause. The provisions of paragraphs 6' and 1 touching the real estate are not inharmonious, and the words-c( in trust for the execution of my will ” do not support the contention that these proceeds are applicable, with the personal estate, to the payment of general legacies. The executors are to sell the real estate and receive the proceeds in trust for the execution of my will”; that is, with the proceeds they are to carry out and execute the provisions of the will, and one of these provisions, contains the specific direction to pay those particular proceeds to the brothers and sisters of the testatrix, and compliance herewith is mandatory upon the executors. As it appears, the personalty will be insufficient, after the creation of the annuity fund, to pay at this time the legacies given by the first, third, fourth and fifth clauses, these legacies must abate ratably as between themselves. They are general legacies, and there is nothing in the language of the will or the character of the bequests to indicate an intention to prefer a particular legatee. The payment of the legacies mentioned in the first, second and third paragraphs of clause 6 must be postponed until all the prior legacies are paid; and as to these legacies interest will not run until the executors have in their hands sufficient money to pay the legacies. The legacy to the Congregational church is a general legacy, and carries interest from the expiration of one year after the granting of letters. The legatees mentioned in the third and fifth clauses are entitled to receive such income as has actually been earned by the respective funds’since the death of the testatrix. Matter of Stanfield, 135 N. Y. 292. This may be ascertained by subtracting from the total net income the total annuity and dividing the balance among the several trust funds in the proportion which each fund bore to the whole estate" at the death of testatrix, after deducting therefrom the principal of the annuity fund. The will was proved by the testimony of Emily R. Tilden and H. Tilden Swan, two of the subscribing witnesses, and they, therefore, forfeit their legacies. As the other subscribing witness, Susan T. Sabin, was not examined, her rights as legatee are not affected. Her presence could not be secured on the probate, and consequently the will could not be proved without the testimony of the witnesses who were examined.

Judgment accordingly.  