
    In the Matter of the Accounting of Benjamin Albertson and another, Ex’rs, etc., of John R. De Bevoise, Dec’d.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Wills—Rule that taxes and interest is payable out of income of
    ESTATE—How CHANGED.
    To change the general rule that, as between the life tenant and the; remainderman, the former is bound to pay the taxes imposed and the interest accruing upon a mortgage, a very clear expression of such intention on the part of the testator must be found in his will, and which if not found in his will in so many words, yet is the only one which a fair and reasonable construction will admit of.
    2. Same—Construction of.
    In the sixth paragraph of the testator’s will, where the right to use and occupy a certain farm, free of rent, is given to the widow so long as she lives, occur words which it was insisted contained an unequivocal expression by the testator of an intention that, pending her occupation, the trustees are to appropriate from the capital of the estate the sums necessary to keep down all taxes, interest, repairs, etc., viz.: “And I direct that my trustees shall, during the time that my said wife shall so use and occupy said farm, pay out of my estate, from time to time, as the same shall accrue and become necessary, all taxes,” etc. Held, that the insertion of the words ‘pay out of my estate ” is not in itself sufficient to support the construction contended for.
    .3. Same—What words necessary to sustain construction that taxes
    ARE PAYABLE FROM CAPITAL.
    To sustain a construction whereby the capital might be more or less seriously impaired by using it in payment of taxes and of interest on a-mortgage, and in maintaining the realty used by the beneficiary, require words of the most unmistakable import and pointing unequivocally in. that direction.
    Appead from a judgment of supreme court, general term, second department, affirming a decree of the surrogate’s court of Queens county directing that certain payments be made out of the income of testator’s estate.
    Testator died June 5, 18Y8, leaving his widow, Sarah, him surviving: but no descendants. His widow, Sarah, died August 2, 1881. By testator’s will a trust was created for the benefit of his widow, during her life, in the" whole of his estate, after payment of his debts etc.
    
      The fourth, or residuary clause is as follows, viz:
    
      “Fourth. All the rest, residue and remainder of my •estate, real and personal, which I shall own at my death or of which I shall die seized or possessed, br to which at my death I shall be in any way entitled, and wheresoever situated, I give, devise and bequeath unto my friends Benjamin W. Albertson and Garret J. Garretson and the survivor of them and the successors of such survivor. In trust nevertheless for them, during the lifetime of my wife, Sarah De Bevoise, to collect and receive the rents, issues, income and profits thereof and to apply such rents, issues and incomes and profits to the sole use of my said wife Sarah during her life. And upon the further trust upon the death of my said wife Sarah to pay,' out of the capital of said trust estate, the legacies mentioned in the third article of this my will, or such of said legacies as may not then have lapsed from any cause, and to convey, transfer and distribute the remainder of the capital of said trust estate or the securities in which the same may then be invested to, between and among my niece, Eveline De Bevoise Boice, wife of Bichard Boice, and my nephews Charles B. Hegeman, Rem. Hegeman and James Gilbert De Bevoise, and the issue of any of my said last four named niece or nephews who may have died before my said wife, and left issue who shall survive my said wife, in equal shares or proportions, per stirpes and not per capita, to be thenceforth had and held by them, their heirs, executors, administrators and assigns forever.
    By the “fifth” paragraph testator empowers “ the trustees of this, my will, appointed of the estate, devised and bequeathed as aforesaid, for the use and benefit of my wife, Sarah, during her life, to sell the whole or any part of the real estate belonging to such trust estate.”
    * * * “It is my will, and I do hereby direct, that the proceeds of such sales, and the securities in which such proceeds may be invested shall be held and managed by the •said trustees, or their successors, upon the same trust and for the same purposes, and be disposed of in the same manner as such real property would in case of no such sale by the force of the previous provisions of. this my will. * * * By a further paragraph, a provision is made respecting his farm, which reads as follows, viz:
    “ Sixth. It is my will that my said trustees shall not sell; my farm, in the town of Jamaica, whereon I now reside, under the power of sale hereinbefore given to them, during the lifetime of my said wife Sarah, except with her consent, to be signified by her joining in the execution of a , -deed of conveyance of the same, and that if my said wife shall so desire, she be permitted to use and occupy said farm free of rent so long as she shall live, and I direct that my said trustees shall, during the time that my said wife shall, so use and occupy said farm, pay out of my estate from time to time as the same shall accrue or become necessary, all taxes upon said farm, and the expenses of keeping the buildings thereon in proper repair, and all other expenses attending the proper upholding and maintaining of the-same; and also the interest upon any and all mortgages which shall be upon said farm at the time of my death. *
    During the widow’s lifetime, the testator’s executors, paid the interest accruing upon a mortgage covering the-farm and the insurance premiums and the taxes, etc., on the same, from the income of the estate in their hands. Upon their accounting, objection was made to such portions of the account as covered such charges to the income, by the executors of the widow, Sarah, on the ground that-these items were chargeable to the capital of the estate. 7É’
    The surrogate sustained the objection and held the payments in question chargeable to capital account. The general term have reversed the surrogate and have held the-payments chargeable to income; and from their decision, this appeal is taken.
    
      Henry A. Montfort, for app’lt; Geo. S. Dutcher, for resp’ts.
    
      
       Affirming 12 N. Y. State Rep., 564.
    
   Gray, J.

—To change the general rule that as between the life tenant and the remainderman the former is bound, to pay the taxes imposed and the interest accruing upon a mortgage, a very clear expression of such an intention on the part of the testator must be found in his will. The-usual purpose of the testator, in providing for a beneficial interest in a trust estate, is that the net income shall be applicable only, and that the corpus, or capital, of the trust; estate shall remain intact until the trust shall have determined. The principle has been so long and firmly established that interest on mortgages, taxes, repairs and all", those current expenses,' which are fairly incidental to the-maintenance of the realty used by a life tenant, are payable by him, that it should be adherred to upon all occasions;, unless, in so doing, we violate a plain direction to the contrary; which, if not found in the will in so many words, yet is the only one which a fair and reasonable construction permits of our finding.

What do we find in the present will, which warrants our-enlarging the provision of the fourth clause, in favor of the widow ? By that clause a trust is created, comprising all of the residuary estate, remaining after paying debts- and expenses incidental to administration; and the rents, issues, income and profits received by the trustees are to be applied to the sole use of his widow for her life.

Although the direction there is not, in words, to apply the net income, etc., received by the trustees, the omission is supplied by the rule of construction, and net income only is applicable to the beneficiary. But in the sixth paragraph of the will, where the right to use and occupy the Jamaica farm, free of rent, is given to the widow, so long as she lives, occur words, which the appellants insist upon as containing an unequivocal expression by testator of an intention that, pending her occupation, the trustees are to appropriate from the capital of the estate, the sums required to ¡keep down all taxes, interest, repairs, etc., upon the property.

The words are: “If my said wife shall so desire, she be permitted to use and occupy said farm free of rent so long as she shall live; and I direct that my said trustees, shall, during the time that my said wife shall so use and occupy said farm, pay out of my estate from time to time, as the same shall accrue or become necessary, all taxes upon said farm, and the expenses of keeping the buildings thereon in proper repair, and all other expenses attending the proper upholding and maintaining of the same; and, also the interest upon any and all mortgages which shall be upon said farm at the time of my death.”

This permission to his widow to use the farm qualified the previously given authority to sell the testator’s realty, by excepting so much of it in the contingency .mentioned.

In my opinion, the'insertion of the words “pay out of my estate,” in the sixth clause, is not, in itself, sufficient to support the construction contended for by these appellants. Such an expression is quite as consistent with the idea that the income shall be resorted to, as that the capital of the trust fund shall be diminished for the purpose. If we refer to the other parts of the will, they disclose rather an intention to preserve intact the corpus of the estate, for the ultimate disposition arranged with respect to the residuary -estate upon the death of the life tenant. That disposition is the transfer to his niece and nephews of so much of the capital of the trust estate as shall remain after the payment of certain legacies, given by the third clause of the will, and which are postponed in payment until the death of the widow. These words are not without importance, viz.: “To pay out of the capital of said trust estate the legacies, * * * and to convey, transfer and distribute the remainder of the capital of said trust estate.” To sustain a construction, whereby the capital might be more or less sci ously impaired, by using it in the payment of taxes and o interest on the mortgage and in maintaining the realty used by the beneficiary, we ought to find words of the un-, mistakable import and pointing unequivocally in that direc-. .tian.

In the fifth clause, the understanding of the testator that his widow should only have the use or benefit of the income of the estate seems evidenced, when he speaks of the trustees as “ appointed of the estate devised and bequeathed as aforesaid for the use and benefit of my- wife Sarah during her life.”

In the same clause he provides that the proceeds of any sales, made under the power conferred, “ shall be held and managed by the said trustees, or their successors, upon the same trust and for the same purposes, and be disposed of in the same manner as such real property would in case of no such sale by the force of the previous provisions, etc.’” I do not think to concede to the words in the sixth clause, “pay out of my estate ” the force and meaning that appellants contend for, would be consistent "with the manifest, plan of the will; and unless we can find authority for such a concession by a general reading and view of the instrument, we should not allow possibly ambiguous words and expressions to change an established rule of construction, or to defeat what seems to be elsewhere rather a different intent of the testator. It may be said that the widow, or life tenant, in occupying thé farm, would have been bound, by the general rule in such cases, to keep down these current charges, and that these words in the sixth clause were-unnecessary.

That may be true and yet the force of the rule remain-unaffected. We may consider the language as surplusage,, or as an instruction to the. trustees. They may have been, precautionary in their use. " The fact that she would legally have been bound to pay these charges is no reason why the testator should not specifically direct his trustees to see-to their payment from the revenues of the trust fund. He had just given her the beneficial interest in the revenue-from his whole estate, of which this farm was a component part. Upon extending to her the option of using and. occupying the farm, and thus withdrawing it from the-control of the trustees, the testator, in directing them to-pay the taxes, interest and other expenses of maintenance, merely provided against the possibility of an accumulation of such liens and of serious deterioration in value, whether from neglect or from any other cause, and thereby ensured the preservation of his residuary estate for the ultimate purposes specified.

I think the views I have expressed better harmonize-with the general scheme of this will and work out the more equitable result. I, therefore, advise that we affirm the judgment of the general term, with costs to the- . respondent, to be paid out of the estate.

All concur.  