
    In the Matter of the Judicial Settlement of the Account of W. Oscar Shadbolt and Thomas Knight, as Trustees of the Last Will and Testament of John Palmer, Deceased.
    (Surrogate’s Court, Kings County,
    June, 1911.)
    Executors and administrators — Distribution of proceeds of land and of moneys paid into Surrogate’s Court on judicial sale — Setting out value of life estate.
    The provisions of rule 70 of the General Rules of Practice for the payment of a gross sum in lieu of any annual interest or income for life apply only to a life interest or income “ of any sum paid into court,” and do not contemplate a fund in the hands of executors derived from a sale of lands in which testator’s widow has a life estate.
    Proceeding for the judicial settlement of the accounts of testamentary trustees.
    Earle & Russell, for trustees.
    Hieronymus A. Herold, for Mary A. Palmer, life tenant.
    Payne & Scudder, for John H. Palmer.
    Henry F. Cochrane, for C. Mortimer Palmer.
   Ketcham, S.

The will under which this accounting is made is impart as follows:

“Sixth. I hereby give to my wife, Mary A. Palmer, my house and farm situated at Woodbury * * * to have and to hold the same as her own until her death.”

The residue of the estate is devised in trust, and it is directed that upon the death of the wife the executors shall sell the farm at Woodbury and shall take the proceeds, adding thereto a certain trust fund, and divide such fund equally among three sons named.

The farm has been sold, upon conveyances1 joined in by all of the persons interested, for life or in remainder, and the executors include the proceeds in the present accounting.

The wife asks that there he paid to her a gross sum in lieu of her life estate in the proceeds of the sale, relying for such relief -upon rule 70 of the General Rules of Practice. The provisions of this rule, for the payment of a gross sum-in lieu of any annual interest or income for life, apply only to á “ life interest or income of any sum paid into court.” They do not in terms or spirit contemplate a fund in the hands of the executors derived from a sale of lands in which the widow, under the will of the decedent, has a life estate..

Such fund is not “ paid into court ” and cannot escape the control of the will. It is of the essence of every testamentary provision creating a life estate, whether legal or equitable, that the life tenant or beneficiary is restricted k> such payments as shall accord with the direction of the will." To commute the benefit by the payment of a sum in gross would violate the testator’s purpose.

The proceeds of the farm should be delivered to the widow, upon her giving to the trustees the bond to which they are entitled under the law, conditioned for the safety of the fund at her decease. There is no occasion and, therefore, no power, to construe the will with respect to the disposition of the farm in the event of the widow’s death. Such determination is not essential to any decree which can be made now.

.Decreed accordingly.  