
    In the Matter of the Judicial Settlement of the Accounts of PHEBE C. HAVILAND, as Executrix of the Last Will and Testament of JOHN COCKS, Deceased.
    
      When a cestui que trust, who is bequeathed a sum certain, as the intei'est of a fund ' to be set aside for that pv/rpose, is entitled, in default of such intm'est, to be paid from the principal.
    
    A testator having by bis will directed his executors to invest such sum as would net $1,000 a year, “ and from such sum so invested to pay to my beloved wife. Adelia Cocks, the sum of $1,000 per year from my decease,” the executors invested $10,000 at an interest of ten per cent. At the time of the application hereinafter mentioned all that remained of the principal of said sum was some $4,350, on which there was almost $3,000 of accrued interest, and the amount of the arrear of the annuity due to the widow was claimed by her to be in excess of $10,000.
    The widow applied to the Surrogate’s Court for an order directing the payment, to her of the whole principal sum, which was refused, the court deciding that she was entitled only to the accummulated interest of the fund and to such as-might accummulate upon the principal thereafter.
    
      Held, error; and that the decree of the surrogate should be so modified as to direct, the payment of the entire residue of said fund to the widow on account of her annuity.
    Appeal by Adelia Cocks from that portion of tlie decree, entered in the above-entitled matter in the Surrogate’s Court of Westcbester county, which denied her petition to have applied toward the payment of arrears of annuity to which she was entitled under the provisions of the will of John Cocks, deceased, the residue of the-decedent’s estate in the hands of his executrix.
    The testator.-died, leaving a will which was admitted to probate-on the 29th day of June, 1868, which contained, among others, the. following provisions:
    
      “First. I direct my executors, hereinafter named, and the survivors of them, to invest such sum of my property as will net one thousand dollars over and above all taxes and assessments per year, upon bond and mortgage upon real estate in the county of Westchester, within three months after my decease, and from such sum so invested to pay to my beloved wife Adelia Cocks, the sum of one thousand dollars per year, from my decease, and to be paid to her by my said executors, semi-annually, so long as she shall remain my widow unmarried, and no longer, and this provision to my said wife is in lieu of dower.”
    
      James A, Hudson, for Adelia Cocks, petitioner, appellant.
    
      M. L. Oóbb, for Phebe C. Haviland, respondent.
    
      Wm. M. Skimmer, Jr., for the infants, Anna Cocks and Yirginia ■Cocks, and minor children of David Cocks, deceased, respondents.
   .Barnard, P. J.:

John Cocks, by his will, made a provision for his wife as follows : He directed his executors “ to invest such sum of my property as will net one .thousand dollars, over and above all taxes and assessments, per year, upon bond and mortgage upon real estate in the county of Westchester, within three months after my decease, and, from such ■sums so invested, to pay to my beloved wife, Adelia Cocks, the sum ■of one thousand dollars per year from my decease, and to be paid to her by my said executrix semi-annually, so long as she shall remain .my widow, unmarried, and no longer, and this provision to my said wife is in lieu of dower.” Although the estate was amply sufficient to provide a fund for the above annuity, if measures to that effect had been taken, it was not done, but the residuary legatees, who were all named as executors, and who had all qualified, divided .almost the entire estate, which was large, among themselves. They made fitful and uncertain payments on the annuity for sometime, and then the payments altogether ceased. The amount now due to the widow for back annuities is $10,175.25, and the estate left is of principal, $4,354.70. The decree directs the payment of the interest ■remaining in the executor’s hands to the petitioner, and the ■principal sum to be invested, and the interest on that only to be paid to the widow in lieu of her $1,000 annuity. This is a hard result, and, I think, one not supported by the cases. It is a well-.settled rule that where a legacy or annuity is payable solely out of income, and the fund fails to produce the sum required, the legacy .abates in proportion to the loss of capital or fund. This rule is not one that is universally applicable to all annuities given to be paid ■out of income. If, from the will, an intention can be discovered that the legacy shall be paid at all events, the intention will not be permitted to be overruled by tbe direction that tbe annuity is to be raised out of a particular fund. The case of Pierrepont v. Edwards (25 N Y., 128) is a case very much like tbe present one. A testator gave an annuity, payable out of tbe income of my estate.” Tbe property was so unproductive that the income was not equal to tbe charge on it, although tbe estate bad productive property to a considerable amount. ^ The Court of Appeals held that tbe legacy was payable to tbe wife, out of the principal of tbe estate, because otherwise tbe wife would get nothing, and tbe residuary legatees would alone be benefited. Tbe executors were held to be bound to produce an annuity, or in some other way to secure tbe payment of tbe annuity.

Tbe present case seems much stronger in favor of tbe widow. She accepted tbe annuity in lieu of dower, and tbe testator owed tbe annuity as purchase-money. (2 Redf. on Wills, 747.) In tbe next place tbe executors have failed to set apart a fund to raise tbe annuity, but have distributed a very large part (some $85,000) of tbe estate among themselves. It is manifest that tbe testator intended to charge this annuity upon bis entire estate until this fund was set apart. If tbe executors, who were the residuary heirs, can reduce the estate by division among themselves, and fail to set apart tbe fund, and thus reduce tbe annuity to about $200, tbe result is in every way inequitable.

The decree of tbe surrogate should be modified so as to direct tbe payment of tbe entire residue to tbe widow on account of her annuity, with costs to tbe appellant of this appeal.

Pratt, J., concurred..

Dykman, J.

(dissenting):

This is an appeal by tbe widow of tbe deceased testator from so much of tbe decree of tbe surrogate as denies her petition to compel tbe executrix, having custody of tbe remnant of tbe estate of John Cocks, deceased, to apply tbe same toward tbe payment of arrears of annuities- due to tbe petitioner under tbe last will and testament of her said husband. By one of tbe provisions in tbe will tbe testator directed bis executors to invest sufficient of bis estate on bonds and mortgages on real estate in Westchester county to produce a net income of $1,000 a year, and to pay such income over to his widow in half yearly payments so long as she should, remain unmarried.

All of the children of the testator and his wife and the husbands of such of them as were married were appointed executors of the will, and all of them qualified. No investment was ever made as directed by the will, or in any other manner, but the sum of $10,000 was invested in one of the western states at an. interest of ten per cent to produce the annuity of $1,000, provided for by the testator in favor of his widow, and the remainder of the estate was divided among the residuary legatees.

All that now remains of the principal of the estate is $4,350, together with nearly $3,000 of accrued interest, and the amount of the arrears of the annuity due to the widow is equal to the accrued interest and the principal now remaining; and the question before the surrogate was whether he should direct the payment of the whole to the widow, and he decided that the widow was entitled only to the accumulated interest of the fund, and such as might accumulate upon the principal hereafter.

It was plainly the intention of the testator that the annuity provided for his wife should be paid out of the income of the money to be invested in her favor for that purpose, and that the body of the estate should remain until the death of the annuitant.

The annuity was to be paid out of the sum invested; the residue of the estate was given in equal shares to the children, and their legacies were to be paid at the end of a year after the testator’s death, and the whole of the estate was thus disposed of by the testator leaving nothing to which' resort could be had to make good any deficiency which might accrue by the misconduct or misfortune of the executors.

Our conclusion is that the widow was entitled only to the interest of the residue of the body of the estate remaining in the executors’ hands which is given to her in the decree from which the appeal is taken, and the same should be affirmed, with costs

Decree of surrogate modified by directing payment of entire residue of estate to widow, with costs to the appellant of this appeal.  