
    In re FILON’S ESTATE. DAVY et al. v. STEWART et al.
    (Supreme Court, Appellate Division, Fourth Department.
    December 9, 1898.)
    1. Wills—Construction—Deceased Beneficiaries—Survivorship.
    Testator directed that the income from a portion of his estate to be held1 in trust should be divided among his devisees, share and share alike. Nothing in the will evidenced an intention that the interest of any beneficiary should, on his death, go to his co-beneficiaries. Held that, as beneficiaries took as tenants in common, the share of a deceased beneficiary would not go to his surviving co-beneficiaries.
    2. Same.
    A testator directed a portion of his estate to be held in trust during the life of his wife, and the net income to be divided among four beneficiaries, share and share alike. There was no express direction that one-fourtb should be paid to any of the beneficiaries during the life of the wife, nor that the income bequeathed to each on his death should go to his representatives. It was directed that, after the wife’s death, the estate was-to be distributed to testator’s next of kin, under the statute of distribution. Held, that the portion of such income arising after the death of a beneficiary would not go to his executors, but would go to the persons presumptively entitled, when the estate was distributed, to the next eventual estate in the residuum, who, under another clause in the will, were the next of kin.
    Appeal from surrogate’s court, Monroe county.
    Action by John M. Davy and. another, as surviving executors of the will of Michael Filón, deceased, against S. Louise Stewart and others. From a decree of the surrogate’s court directing the. payment to the executors of defendant Mary E. Filón of a portion of the trust estate accruing after her death, complainants appeal.
    Reversed.
    Argued before HARDIN, P. J., and FOLLETT, ADAMS, and WARD, JJ.
    James'R. Davy, for appellants.
    George F. Yeoman, for respondents executors of Mary E. Filón.
    Cassius 0. Davy, for Edgar Dietrich and John Minock.
   FOLLETT, J.

July 13, 1893, Michael Filón died, at the city of. Rochester, leaving a last will and testament, which was duly probated September 26, 1893, by the surrogate of the county of Monroe, and letters testamentary issued thereon to Mary E. Filón, Platt B. Yiele, and John M. Davy, the executors nominated in the will. The testator left no descendants, but left a widow and nephew and nieces, who- were his heirs and next of kin. The testator, by the first 18 clauses of his will, made various devises and bequests. The nineteenth and twenty-first clauses, over which this controversy arises, are as follows:

“Nineteenth. "The balance, residue, and remainder of my estate, both real and personal, of every name and description, I give, devise, and bequeath to my executors hereinafter named, in trust, nevertheless, to have and to hold the same during the lives of my. wife, Mary E. Filón, and my niece Emma Snapp, and to receive the rents, issues, and profits thereof, and after paying all taxes, assessments, insurance, and improvements, including expenses incurred in looking after and taking care of my said property, the balance, residue, and remainder I direct to be divided among the following named persons, share and share alike: My wife, Mary E. Filón; my niece Emma Snapp; my niece Jerusha Naylor; my grandnephew, John Naylor, son of my niece Jerusha Naylor.”
“Twenty-first. And after the death of my said wife, Mary E. Filón, and my niece Emma Snapp, I direct my executors and trustees to convert all my property, both real and personal, into money, and the proceeds to be distributed among my next of ltin then living, according to the statute of distribution of the state of New York.”

The income arising from this trust estate has been paid over to Mary E. Filón and to her executors, up to January 21, 1897, when she died, leaving a last will and testament, which was duly admitted to probate by the surrogate's court of the county of Monroe, and letters testamentary issued thereon to her three children, S. Louise Stewart, Elmer E. Almy, and Willey H. Almy. The question presented by this appeal is whether the one-fourth of the net income arising from the trust estate since January 21, 1897, the date of the death of Mary E. Filón, goes (1) to Emma Snapp, Jerusha Naylor, and John Naylor, to be divided equally among them, or (2) to the executors of Mary E. Filón, or (3) t© the persons presumptively entitled, when the income is distributed, t© the next eventual estate in the residuum, as provided in the twenty-first clause. By the nineteenth clause, the net income arising from the trust estate is directed “to be divided among” Mary E. Filón, Emma Snapp, Jerusha Naylor, and John Naylor, “share and share alike.” Under this language, the beneficiaries "were not joint tenants of the net income, but took it as tenants in common,—distributively,—one-fourth each. Delafield v. Shipman, 103 N. Y. 463, 9 N. E. 184. There is no expression-in the will evincing an intention of the testator that the one-fourth of the net income bequeathed to any one of the four beneficiaries should, after his or her death, go to the co-beneficiaries. No person acquires any interest in the residuum, or in the income arising therefrom, through or from all or any of the four beneficiaries. This being so, and tie four beneficiaries not taking the net income as joint tenants, a right of survivorship as between them does not exist, and the three surviving beneficiaries do not take the share of the deceased beneficiary, Mary E„ Filón. °

Does one-fourth of the net income arising from the trust estate since January 21, 1897, go to the executors of Mary E. Filón? A bequest of an annuity to A, for a definite term of years, or during the life of B„, is a gift to A. and his personal representative during the term, or during the life of B., and does not expire at the death of A. Savery v. Dyer, 1 Dickens, 162, more fully reported 1 Amb. 139; In re Ord, Dickinson v. Dickinson, 12 Ch. Div. 22; Kelly v. Casey, 62 Hun, 467, 17 N. Y. Supp. 86; Montanye v. Montanye, 29 App. Div. 377, 51 N. Y. Supp. 538; 2 Williams, Ex’rs (7th Am. Ed.) 484; 2 Am. & Eng. Enc. Law (2d Ed.) 393 et seq., and cases cited. A bequest of the income to arise from a fund to be paid to A. during the life of B., or for a term, is an absolute gift to A. and to his representatives during the life of B., or during the term. Attwood v. Alford, L. R. 2 Eq. 479; Morgan v. Williams, 66 How. Prac. 139; 2 Williams, Ex’rs (7th Am. Ed.) 484; 2 Am. & Eng. Enc. Law (2d Ed.) 393 et seq., and cases cited. In Morgan v. Williams, supra, the direction was that the income was to be divided among 10 beneficiaries, and paid to them until the death of the person upon whose life the duration of the trust estate was limited. In Kelly v. Casey, supra, the direction was to pay the beneficiary “an annual income of two hundred dollars during the life of my wife, Ann Casey.” It was conceded in that case that, had this clause stood alone, the $200 would have been payable after the death of Catharine Casey to her executor during the life of Ann Casey. It was held, however, that the subsequent clauses in the will controlled this direction; and that the $200 were not payable to the executor of Catharine Casey. In Montanye v. Montanye, supra, the direction was to pay “my daughter, Carrie Jelliff, the sum of twenty dollars per week, to be paid to her weekly during the lifetime of my said wife”; and it was held that under this provision the administrator of Carrie Jelliff took the annuity. These cases are in harmony with the English cases cited. In Delafield v. Shipman, supra, the testator devised the residuum of his estate, consisting of realty and personalty, to trustees, to be held in trust during the life of his widow, the net income of which was to be applied—First, to maintain a home for his widow and six children; and, second, to divide the remainder equally among his widow and six children. One of the testator’s daughters afterwards married Edgar Shipman, and died, leaving an infant child, and a will, by which she gave all her property to her husband for life, and after his death to her child. The question arose whether one-seventh of the income accruing after the death of Mrs. Shipman, and before the death of the widow, went to Mrs. Shipman’s executor, to her infant child, or to' the widow and five surviving children, as a class, to be divided equally among them. It was held that the direct tion to pay to Mrs. Shipman during the life of her mother was not sufficiently explicit to carry her share to her executor, and that her share of the income was undisposed of, and passed under the Eevised Statutes to the persons presumptively entitled to the next eventual estate. The direction as to the duration of the payment was more explicit in that case than in the one at bar.

By reference to the nineteenth clause, it will be seen that the trust estate is to be held by the trustees during the lives of Mary E. Filón and Emma Snapp, and that the net income is to be divided among the four beneficiaries, share and share alike. But there is no express direction that one-fourth of the net income shall be paid to any one of the beneficiaries during the lives of Mary E. Filón and Emma Snapp. There is no. language in any part of the will showing that the testator intended that the share of tire net income bequeathed to each should go to his or her representative. This, it seems to me, brings the case within Delafield v. Shipman, supra; and it must be held that one-fourth of the net income arising since the death of Mary E. Filón was not bequeathed by the will, but goes to the persons presumptively entitled, when the net income is distributed, to the next eventual estate in the residuum (In re Tompkins’ Estate, 154 N. Y. 634, 49 N. E. 135), who are pointed out in the twenty-first clause of the will.

The decree of the surrogate’s court should be reversed, and that court directed to enter a decree adjudging that one-fourth of the net income arising from the estate since January 21, 1897, be paid to the persons presumptively entitled, when the net income is distributed, to the next eventual estate in the residuum. The attorney for the appellants and the attorney for the executors of Mary E. Filón are each entitled to a bill of costs, payable out of the income. All concur.  