
    Cocks v. Haviland et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1889.)
    Annuity—Release.
    Where a will directs the investment of a sum sufficient to produce a certain annuity, which the executors are to pay to testator’s widow, a release executed by the widow to part of the executors, from all claim on them either as executors or individuals on account of the annuity, past or future, does not operate to reduce the annuity, but only to discharge the released executors from liability.
    Appeal from surrogate’s court, Westchester county.
    Petition by Adelia Cocks against Daniel E. Haviland and others, executors of the will of John Cocks, deceased, for an accounting, and for the payment to petitioner of an arrears of annuity. The surrogate rendered a decree finding that the amount of the annuity was reduced to g certain sum by a release executed by petitioner, and she appeals. Pending the appeal, David Cocks, one of the executors, died, and his widow and children were made parties respondent.
    Argued before Barnard, P. J., and Dykhan, J.
    
      James A. Hudson, for appellant. Thomas Nelson, for respondents.
   Barnard, P. J.

The case is very voluminous. So far as the facts contained therein are material to the determination of the point presented, they may be very briefly stated: John Cocks, a resident of the county of Westchester, died in 1868, a lid directed that a sum of money sufficient to produce a net annuity of $1,000 should be invested in Westchester county. The executors were directed to pay this annuity to the testator’s widow so long as she remained his widow. This direction in the will was wholly neglected, except that the executors put $10,000 at interest on bond and mortgage in Wisconsin at 10 per cent. This mortgage was not good. The widow was one of the executors, but seems to have had nothing to do with the estate, although she qualified as one. When the Wisconsin mortgage failed to produce the annuity, the widow was pacified by a guaranty given by some of the children to pay the sum personally. Irregular payments were made on it. In July, 1877, there was $1,300 due for back payments, and Haviland and his wife and Mrs. Varney, three of the executors, paid the widow $1,800, and she gave them a release as executors and as individuals from all claims against them, not only for the back and future annuities, but also for Mrs. Haviland’s and Mrs. Varney’s share in the estate of John Cocks, which had been divided between the children on the supposition that the Wisconsin mortgage was all which the widow needed for her annuity. The surrogate held that these payments operated to reduce the annuity to one of $777.03. This does not seem to be just. The annuity remained entire, and was reduced by the payment of this sum of $1,800, so as to pay all arrears due and $500 on future ones. The wreck of the estate was bound to pay the annuity in full, so far as it was sufficient for that purpose. The only result of the release was that the widow had no personal claim to make against the three co-executors discharged from liability under its provisions. The ease shows no fraud upon their part by which the release was procured. That part of the decree which reduces the annuity should be reversed, with costs to appellant out of the estate.  