
    In re HOYT’S ESTATE.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    1, Construction of Will—Gift of Rents and Profits.
    Testator devised and bequeathed to a daughter the rents, interest, and income of all his real estate lying in a certain village, after deducting taxes, insurance, and interest on a certain mortgage, “the same to be collected by my executors hereinafter named, and paid to her annually for and during her natural life.” He also declared that, should his executors think it advisable to sell or dispose of any part of such real estate, the interest on the proceeds should be paid to the daughter as aforesaid. No limitation over of this property after the daughter’s death was made. Held, that testator intended to leave the daughter only a life estate.
    3. Same—Limitation over—Application of Clause.
    Testator gave to his daughter H. a life estate in his lands lying in the village of A., and then directed that the residue of the estate be leased, and the proceeds, deducting taxes, insurance, and repairs, be invested or deposited, “to create a fund to liquidate any indebtedness against the same.” A power of sale was given to the executors in respect to land not lying in A., the proceeds of any such sale to be deposited as aforesaid. The will ended as follows: “And at the decease of my daughter H. to be equally divided between each of my grandchildren her surviving, share and share alike, her children and the children of my daughter B.” The daughter H. was unmarried, while B. was married, and had children. Held, that the latter provision applied both to lands in A. and to the residue of the estate.
    8. Same—Illegal Accumulation of Income.
    In such case the provision for accumulation of proceeds of the residue of the estate is illegal, and such residue goes immediately to the two daughters, the only children of deceased.
    Appeal from surrogate’s court, Orange county.
    Petition by Hattie L. Hoyt to open a decree settling the accounts of the executors of Isaac Hoyt, deceased. From a decree modifying and affirming the former decree said petitioner appeals.
    Modified.
    For former report, see 11 N. Y. Supp. 901.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Gilbert 0. Hulse, for appellant Hattie L. Hoyt.
    John J. Beattie, for executors.
    H. W. Nanny, for special guardian.
    Wm. D. Mills, for respondent Annie Conklin.
   BARNARD, P. J.

Isaac Hoyt, a resident of Orange county, died in 1886, leaving two children,—one, the petitioner, Hattie L. Hoyt, unmarried; and a married daughter, Annie A. Conklin. The deceased left a last will and testament, as follows:

“I, Isaac Hoyt, of the town of Warwick, county of Orange, and state of New York, being of sound mind and memory, and considering the uncertainty of this life, do make, publish, and declare this to be my last will and testament, in manner following, to wit: First. After all my just debts and funeral expenses are paid, I give, devise, and bequeath to my daughter Hattie L. Hoyt the rents, interest, and income of all my real estate, situate, lying, and being in the village of Amity, in the said town of Warwick, after deducting taxes, insurance, interest on bond and mortgage given to Elizabeth Utter to secure the payment of twelve hundred dollars, and all necessary repairs thereon, the same to be collected by my executors hereinafter named, and paid to her annually for and during her natural life. And should my executors, in their wisdom, consider it best for the interest of my estate to sell or dispose of all or any part thereof, then the moneys arising from such sale or sales to be invested, and the interest to be paid to her as aforesaid. All the rest, residue, and remainder of my real and personal estate, wheresoever situated, I order my said executors to lease, and the rents and income arising therefrom, after deducting all taxes, insurance, and mortgages held against any such real estate, necessary repairs and commissions, to be deposited in the Warwick Savings Bank, or any other solvent savings bank, to create a fund to liquidate or help pay off any indebtedness against the same. I, however, leave it discretionary, and empower my said executors, whenever they deem it for the best interest of my estate, to sell all or any of my real estate, and to give sufficient deed or deeds to the purchaser or purchasers thereof, and the moneys arising from such sale or shies, after deducting all expenses of such sale or sales, and the indebtedness held against such real estate, to be deposited as aforesaid, or upon good securities elsewhere, and at the decease of my daughter Hattie L. to be equally divided between each of my grandchildren her surviving, share and share alike, her children and the children of my daughter Annie A. Conklin. Lastly. I nominate and appoint my friends J. E. Waterbury and Wm. J. Sly executors of this, my last will and testament, hereby revolting any and all former wills by me made. In witness whereof, I have hereunto set my hand and seal this 25th day of May, 1886.
“Isaac Hoyt. [L. S.]”

The testator did not intend to give more than a life estate in the Amity lands by the first clause in the will. While there is a class of cases which hold that a gift, rents, issues, and profits cover a fee, this clause is so precise and definite that no doubt of the testator’s intention can be raised. The rents were to be paid, after deducting repairs, taxes, and interest, to Hattie “annually for and during her natural life.” The executors had given them a power of sale, but in case of a sale the moneys received on the sale were to be invested, and “the interest to be paid to her as aforesaid.” In re Smith, 131 N. Y. 239, 30 N. E. Rep. 130. What the testator intended to do with the land after the life estate ended is not plain. There is no distinct gift of it. The testator divided his estate in two parts. He gave a life estate in the Amity lands to his daughter Hattie for life. He then directs that the “rest, residue, and remainder” of the estate, real and personal, be leased, and the proceeds, deducting taxes, insurance, and repairs, be deposited in a savings bank, or invested “to create a fund to liquidate or help pay off any indebtedness against the same.” ■ A power of sale is given in respect to the lands other than the Amity lands, but the proceeds of lands under this part of the will are to be “deposited as aforesaid, or upon good security elsewhere.” The will then ends in this clause: “And at the decease of my daughter Hattie L. to be equally divided between each of my grandchildren her surviving, share and share alike, her children and the children of my daughter Annie A. Conklin.” The serious question in the will is whether this clause was intended to cover the Amity lands, and the rest, residue, and remainder of the estate other than the Amity lands. My opinion is that it was intended to thereby dispose of the whole estate. Ho provision is made for the payment of any portion of the estate to Mrs. Conklin during the life of Hattie L. Hoyt. • Both parts are tied up during the life of Hattie, and both are made free upon her death. In determining whether the Amity lands are covered by this clause it is immaterial what shall be adjudged to be the legality of the disposition of the rest and remainder under the clause which provides for an accumulation of that part of the estate until Hattie’s death. I think this rest and remainder at once goes to the two daughters equally, because the accumulation is illegal; and that the Amity lands are given to the grandchildren living at Miss Hoyt’s death per capita. Decree to be modified accordingly. All concur.  