
    In re Denton, executor.
    
    
      (Court of Appeals,
    
    
      Filed April 13, 1886.)
    
    Will—Legacy to wife, with direction to pay certain sum to son
    WHEN OP AGE.
    Where the will of testator contained the following clause: “I give and bequeath to my daughter. E. J. M., the sum of $25,000, and do order and direct that $8,000 of said sum be paid over to her son, T. D. M., when he shall arrive at the age of twenty-one years: ’ Held, that it was an express direction to his executor to pay over the whole $25,000 to Mrs. M., and constituted her a trustee for T. to pay him out of the principal the sum of $8,000 at his majority.
    Appeal from judgment of general term supreme court, second department, affirming decree of surrogate of Orange county.
    
      William Van Amee, for appellant.
    
      D. F. & H. Gedney, for respondent.
    
      
       Affirming- 33 Hun, 317.
    
   Finch, J.

The clause in the testator’s will out of which the present litigation has arisen, is expressed in these words, viz.:

“I give and bequeath to my daughter Elizabeth J. Mead the sum of $25,000; and do order and direct that $8,000 of said sum be paid over to her son Theodore D. Mead when he shall arrive at the age of twenty-one years.”

The question presented is whether the executor was justified in paying the whole bequest to Mrs. Mead, or should have retained for investment $8,000 thereof, accounting to her for the interest during the minority of Theodore, and preserving the principal for him on his arrival at full age. The counsel on both sides agreed in the fundamental proposition that the testator might direct, by express language in his will, the payment of the remainder-man’s legacy to the primary legatee, to hold as a substituted trustee, and so_ that she would become alone accountable for its payment' over at the majority of Theodore. Smith v. Van Ostrand, 64 N. Y., 278; Bliven v. Seymour, 88 N. Y., 469. But the disagreement arose over the inquiry whether, upon a proper construction of the will, such express direction was given. The language used permits such interpretation naturally and without violence. Whenever a testator gives and bequeaths a sum to a legatee, the law requires it to be paid to the person entitled within one year from the issue of letters, and the bequest itself, read in connection with the statute, becomes an express direction to pay within that period, unless some different time is named, or some other provision forbids the payment, or shows that it was not intended. The last occurs whenever a mere life-estate is given with remainder over; for in such case the principal sum is not given at all to the primary legatee, but only the use and annual income, and the principal remains in the hands of the executor to be paid over at the appointed time. The difficulty here grows largely out of a commingling of both these features. There is a bequest of the whole $25,000 to Mrs. Mead, and then a direction to pay $8,000 to Theodore, which reduces the interest of the primary legatee in that portion of her bequest to a life-estate; and we can only solve the problem by searching for the meaning and intent of the testator as gathered from the will in all its parts.

It is obvious that the bequest to Theodore is made a charge upon the $25,000 bequeathed to Mrs. Mead, and not upon the assets generally. The testator in explicit terms first makes the bequest to Mrs. Mead of the complete and full sum, and then directs that out of that sum, from that specific fund, there shall be paid to Theodore the amount of $8,000. The two things can concur and be consistent, and fulfill the precise language of the will. If the testator meant that the entire $25,000 should be paid to Mrs. Mead, and that she should pay of it $8,000 to Theodore at his majority, every word of the direction will be precisely fulfilled. But if we say, on the contrary, that the executor’s duty was to withhold the $8,000, and himself invest it and pay over the income to Mrs. Mead, and in due time the principal to plaintiff, the bequest of $25,000 to Mrs. Mead is not such, is in part contradicted and modified by what follows, and becomes a bequest of $17,000 absolutely, and of the income of $8,000 until Theodore’s majority. It was easy to say that, if the testator so meant. That he knew how to say it is apparent from the language of his bequests to two other grandsons. In one he says:

“I give and bequeath to my grandson, Eugen W. Den-ton, $10,000, to be paid unto him, with the interest and income thereof, by my executors when he shall arrive at the age of twenty-one years, until which time said sum is to be safely invested by my executors.”

And he knew lrow not to say it, and to say something else. The ninth clause in his will was thus phrased:

“I give and bequeath unto my cousin, Julia Ann Schoonmaker, $500, to be paid to her within six months after my decease; and I do order and direct that said sum of $500, on the death of - said Julia Ann, be paid to her son Theodore D. Schoonmaker.”

In that clause there is an explicit direction to pay to the legatee the whole sum named, followed by an attempted limitation over, and that direction is full because the statute requirement is payment in one year, and the testator desired to shorten to six months. We are to observe and take into account another provision of the will. The bequest to Mrs. Mead stands charged with the advances made to her appearing upon the 16 Family Book.” If those advances had proved to be so large as to leave to the primary legatee less than $8,000 to be paid over to Theodore, the loss would have been his, and not chargeable upon the general assets; for it is out of the legacy to his mother, subject to all its reductions and infirmities, that his gift was to come; and that fact indicates that the testator did not mean to give Theodore $8,000 absolutely out of his estate, and in any event, but did mean to make his bequest and its realization dependent upon his mother.

There is great force, also, in another suggestion made in behalf of the respondent. Mrs. Mead was certainly entitled to the interest and income of the $8,000 during Theodore’s minority, but she gets such interest under the will, and by force of its terms, only through the bequest and delivery to her of the whole $25,000. It is solely by virtue of her possession of the principal that she gets the interest. If the legacy to Theodore is not to be delivered to her, and the right to its possession did not pass to her by the bequest, there is no express gift of the interest and income, and the will is silent on the subject. The testator manifestly intended that she should receive the interest by virtue of her own possession and control of the principal fund, and be at liberty to make her own investments, at her own discretion, subject only to her duty to Theodore as his trustee.

Many other considerations, gathered from the will and the situation of the parties, have been brought to our notice, and have entered somewhat into our consideration of the question at issue, but are hardly of sufficient importance to justify a prolonged discussion. We are of the opinion that a correct construction of the will involves an express direction to the executor to pay over the whole $25,000 to Mrs. Mead, and constituted her a trustee for Theodore to pay him, out of the principal, the sum of $8,000 at his majority.

The judgment should be affirmed, with costs.

All concur, except Raparlo, J., absent.  