
    Matter of the Compulsory Judicial Settlement of the Account of Lester C. Gilman, as Executor of Theophilus Gilman, Deceased.
    (Surrogate’s Court, Kings County,
    May, 1914.)
    Wills — creation of trust under — gifts — executors and administrators.
    A will, after creating trusts under which in part it was provided that a portion of the fund in trust should be divided so soon as testator’s son R should attain the age of thirty years, or as soon as testator’s sonL. should reach the same age if K should die before attaining that age, provided that if either of said sons should die before the division of the estate between them as directed to be made then the share or interest of the one so dying should go to his heirs, executors and administrators absolutely and forever. K died before his father and before he became thirty years of age leaving his widow and his father as the only distributees of his personal estate. L. survived his father and was over thirty years of age at that time Held, that the gift over upon the death of R was not impaired by the fact that he died before his father and that such gift inured to his administratrix.
    Proceeding upon the compulsory judicial settlement of the account of an executor.
    Joyce & Kavanagh, for petitioner.
    Brush & Crawford (John J. Crawford, of counsel), for respondent.
   Ketcham, S.

The petitioner asks for an accounting by the executor of the decedent. She asserts, and the executor denies, that she, as administratrix of Ralph F. Gilman, deceased, has an interest which supports the petition.

The will contained trusts under which, in part, it was provided that a portion of the fund in trust should be divided as soon as the testator’s son Ralph should attain the age of thirty years, or as soon as the testator’s son Lester should reach the age of thirty years, if Ralph should die before attaining that age.

Ralph died before the death of his father and before he became thirty years of age, leaving his widow, the petitioner, and his father as the only distributees of his personal estate.

The will then proceeds:

“ Fifth: That if either of my sons Lester G. Gilman or Ralph F. Gilman shall die before the division of my estate between them as directed to be made by the third and fourth paragraphs hereof, then the share or interest of the one so dying shall go to his heirs, executors, and administrators absolutely and forever.”

The son Lester survives, and was over the age of thirty years when the testator died.

The gift over upon the death of Ralph was not impaired by the happening of that event before the death of the father. Williams v. Jones, 166 N. Y. 522, and cases cited at page 537.

The gift, in the event of Ralph’s death, to “ his heirs, executors and administrators” must inure to his administratrix.

There is no executor to take, and it remains to consider only the effect of the provision as one in favor of the “ heirs and administrators ” of a person not the testator.

Few words in the legal vocabulary are so readily turned from their precise meaning in construction as ■this word “ heirs.” If, in the provision under examination, the word stood alone to denote to whom a fund of personal property should be paid, it would mean only the persons to whom personalty should be given under the statute of distributions. 4 Words & Phrases Judicially Defined, 3253, sub. nom. “ Heirs.”

This departure from its strict signification is helped rather than hindered by its companionship with the words “ executors and administrators,” describing an office normally related to the care and disposition of personal property.

A legacy to the widow, next of Mn and administrator of a person not the testator could not contemplate a payment to all, either jointly or in common. It would not be satisfied by a payment to the widow and next of Mn, for that would not only exclude the administrator from the legal possession wMch the gift intends for him, but would totally divert the fund from the possible creditors to whom the administrator tabes a duty. But a payment to the administrator would assure to the distributees every benefit within the purpose of the gift; for it is beyond doubt that a legacy to executors or administrators is not a gift to them for their personal benefit or enjoyment, but falls into their hands as a fund to be administered as if it were owned by their decedent at the time of his death. 2 Williams Exrs. (7th Am. ed.) 413, 421 ; 2 Jarman Wills (6th Am. ed.), 122 et seq.

Where such a legacy comes to the representative of an intestate it is applicable, first, to the payment of debts and certain expenses, and its surplus is payable according to the statute of distributions. Hence, the fund in question belongs to the petitioner to be treated as if it were of her intestate at his death. In this disposition she is concerned both personally and vicariously and she, therefore, has an interest which entitles her to the account prayed for..

This is not the time to consider questions resulting from the fact that at the death of Ealph Gilman his father was of his next of kin and that a portion of the fund in question would be in turn payable to the father’s executor. Whether a portion of that fund if it shall reach the father’s executor shall then be at rest (See Matter of Valdez’s Trusts, 40 Ch. Div. 159), or shall find an orbit between the two estates in which, under the impulse of this will, it shall revolve until reduced to the vanishing point by the friction of repeated administrations, must be reserved.

Decreed accordingly.  