
    In the Matter of the Final Judicial Settlement of the Account of Proceedings of James Hull, as Executor of the Last Will and Testament of Mary Emily Hull, Deceased, Appellant, Respondent. Helen Maxwell Williams, Respondent, Appellant.
    
      Surrogates Court—jurisdiction to determine the liability of a testatrix as the administratrix of an estate—commissions on real property—payment óf illegal dbbts of honor — a gift of income without any limitation as to time creates an estate in fee — void accumulation of income — will — when a child takes property on coming of age, or, if it dies, its children take <— when a limitation as to a death while married applies only if there be no children.
    
    Under section 2606 of the Code of Civil Procedure, where all 'the parties interested are before the court, a surrogate has jurisdiction, upon an executor’s accounting, to determine his testatrix’s liability as administratrix of an estate, and to determine what payments have been made upon such liability.
    When an allowance of commissions to an executor and trustee, upon real estate transferred by him to a beneficiary under the will, is unauthorized, considered.
    A widow, who, as administratrix of her husband’s estate, pays her husband’s illegal debts of honor, is not entitled to credit for such payments upon her accounting, if objection thereto be made by her daughter.
    The will of Mary Emily Hull provided as follows: “Seventh. All the rest, residue and remainder of my said property, both real and personal and wherever situate, I give, devise and bequeath to James Hull in trust, nevertheless, to invest and keep the same invested, collect, all the income thereof, and from and out of the. income of all my said property my said executor and trustee is hereby directed to pay to my' daughter, Helgn Maxwell Bushby, the annual sum of twelve hundred dollars, payable in monthly installments; said executor and trustee is directed to take proper care of all my real estate, keep the same in good repair, and insured, pay the taxes and assessments thereon, and do any and all acts necessary and proper in the care thereof. Should the income of all my property exceed the amount necessary to pay all annuities and charges thereon, I direct that the surplus shall be accumulated in the hands of my said executor and trustee, and by him, at his discretion, paid to my daughter, Helen Maxwell Bushby, the same as the above provision of twelve hundred dollars.”
    
      Held, that as the provision for the payment of the income of the residuary estate to Helen Maxwell Bushby was not limited to the latter’s life, or in any other way, and that as the will failed to provide for any remainder in the residuary estate, and as there was a strong inference that the entire residuary estate was intended for the benefit of the said Helen Maxwell Bushby, the latter took the residuary estate absolutely and not simply the income thereof for life with remainder at her death to those who would take in the event of the testatrix having died intestate;
    That the provision for the accumulation of the income was void.
    The will of Tobias Frere gave a portion of his residuary estate to his executors in trust, ‘ ‘ to pay the annual income therefrom to my daughter Eliza Rebecca Bushby, wife of Stephen Bushby, during her life and for her sole and separate use during any coverture and so that she may not have power to alienate or charge the same or any part thereof by way of anticipation, and after her decease to be possessed of the same fifth part upon trust for such child or children of the said Eliza Rebecca Bushby as shall attain the age of 21 years, or dying under that age shall leave issue; or being a daughter or daughters shall attain that age or marry; and if more than one, in equal shares, and as to the share of any daughter for her sole and separate use, and in case there shall be no such child and the said Eliza Rebecca Bushby shall be a widow at the time of her decease, upon such trusts for the benefit of any person or persons as she shall by her last will direct or appoint, and in default of and subject to any such appointment, or in case she shall be married at the time of her decease, upon trust for the person or persons who at the time of her decease would, under the statutes for the distribution of the estates of persons dying intestate be entitled to the same in case she had died possessed thereof intestate and without having been married, and if more than one, in the like shares.”
    Eliza Rebecca Bushby mentioned in the will died subsequent to the testator, being, at the time of her death, the wife of one Bauldrey, who still lives. She also had a son who died intestate after attaining the age of twenty-one years, and who left a widow and two daughters.
    
      Held, that in case Eliza Rebecca Bushby was survived by a child who attained the age of twenty-one years, or who, dying under that age, left issue, the property should go to such child or to its issue, if the child should be dead; That the provision as to the death of Eliza Rebecca Bushby while married was upon condition that there should be no child or grandchild living.
    Separate appeals by James Hull, as executor of the last will and testament of Mary Emily Hull, deceased, and by Helen Max-Well Williams, from portions of a decree of the Surrogate’s Court of Fulton county, entered in said Surrogate’s Court on the 26th day of December, 1903, confirming the report of a referee theretofore appointed in the proceeding, and judicially settling the accounts of -the said executor.
    The proceeding is in the matter of the judicial settlement of the accounts of James Hull, as executor, etc., of the last will and testament of Mary Emily Hull, deceased. Upon the presentation of the account, Helen Bushby Williams, a daughter of the deceased, appeared and filed objections thereto. The matter was referred to a referee, who made his report, which was confirmed by the surrogate, resulting in the decree from which the appeals have been taken.
    Tiie property of Mary.Emily Hull received by this executor came under the will of one Tobias Freré, an English subject. The material parts of that will are as follows: “ I give and bequeath to my said executors and trustees all the residue of my personal estate upon trust after payment of my funeral and testamentary expenses and debts, and subject to the payment of and provision for the said annuity, to pay or transfer * * *. And as to another of the said 3-5th parts of my said residuary' personal estate to pay the annual income therefrom to my daughter Eliza Rebecca Bushby, wife of Stephen Bushby, during her life and for her sole and separate use during any coverture and so that she may not have power to alienate or charge the same or any part thereof by way of anticipation, and after her decease to be possessed of the same fifth part, upon trust, for such child or children of the said Eliza Rebecca Bushby as shall attain the age of 21 years, or dying under that age shall leave issue; or being a daughter or daughters shall attain that age or marry; and if more than one, in equal shares, and as to the share of any daughter for her sole and separate use, and in case there shall be no such child and the said Eliza Rebecca Bushby shall be a widow at the time of her decease, upon such trusts for the benefit of any person or persons as she shall by her last will direct or appoint, and in default of and subject to any such appointment, or in case she shall be married at the time of her decease, upon" trust for the- person or persons who at the time of her decease would, under the "statutes for the distribution of the estates of persons dying intestate be entitled to the same in case she had died possessed thereof intestate and without having been married, and if more than one, in the like shares.” Eliza Rebecca Bushby, mentioned in said will, died March 4, 1892, being then the wife of one Bauldrey, who still lives. Prior to her death she had born a son, Harry Maxwell Bushby, who died intestate October 13, 1878, more than twenty-Ane years of age, leaving a widow, Mary Emily Bushby, and two daughters, one of whom died thereafter under three years of age, the other being Helen Maxwell Bushby, now Williams, contestant in these proceedings. After the death of Harry Maxwell Bushby his widow married this executor, Hull. In March, 1893, Mary Emily Bushby Hull was appointed administratrix of the estate of Harry Maxwell Bushby, her late husband, and received from the proceeds of the will of Tobias Frere personal property in securities of the value of £9,320 and a further mortgage of £1,200 on property at Battersea, Eng. Thereafter, and on the 20tli day of January, 1900, Mary Emily Hull died at the city of Grloversville, Fulton county, leaving a last will and testament in which her husband, James Hull, was appointed executor, and leaving an only daughter, Helen Maxwell Bushby, who afterwards, and upon the 14th day of September, 1902, intermarried with one Williams. James Hull qualified as executor and testamentary trustee under said will, and thereafter filed his petition in Surrogate’s Court for a judicial settlement of his account as such executor. The material part of the will of Mary Emily Hull, after providing for certain legacies and annuities, is found in the 7th clause thereof, which reads as follows : “ Seventh. All the rest, residue and remainder of my said property, both real and personal and wherever situate, I give, devise and bequeath to James Hull in trust, nevertheless, to invest and keep the same invested, collect all the income thereof, and from and out of the income of all my said property my said executor and trustee is hereby directed to pay to my daughter, Helen Maxwell Bushby, the annual sum of twelve hundred dollars, payable in monthly installments; said executor and trustee is directed to take proper care of all my real estate, keep the same in good repair, and insured, pay the taxes and assessments thereon, and do any and all acts necessary and proper in the care thereof. Should the income of all my property exceed the amount necessary, to pay all annuities and charges thereon, I direct that the surplus shall be accumulated in the hands of my said executor and trustee, and by him, at his discretion, paid to my daughter, Helen Maxwell Bushby, the same as the above provision of twelve hundred dollars.” Upon the 30th day of December, 1902, Helen Maxwell Williams executed what purported to be a release unto herself of all her right, title and interest to the rents, profits and income of the estate. This release was executed in an attempt to free the estate from the provisions of the trust under section 83 of the Real Property Law (Laws of 1896, chap. 547) and section 3 of the Personal Property Law (Laws of 1897, chap. 417). Thereafter, and in June, 1903, Phebe Mahala. Van Brocklin, one of the annuitants under the. will of Mary Emily Hull, executed what purported to be an assignment of her annuity to Helen Maxwell TVilliams, of Hew York city. It has been assumed in the argument that the other annuitant is dead.
    To the account of this executor this contestant, Helen Maxwell Williariis, filed objections. The matters' were referred to a referee, Avho reported, first, that all the moneys in the hands of Mary Emily Hull came from the estate of Tobias Frere; after the death of the sister of the contestant the contestant was entitled to one-half of the moneys -received by Mary Emily Hull from the Frere estate, under the Frere. will. As to the remaining moneys of the estate of Mary Emily Hull the referee reported that by reason of the release filed by the contestant under the act of 1893 as afterwards re-enacted in the Real and Personal Property Laws, she was entitled absolutely to all the residue of said property. He allowed as a credit to Mary Emily Hull the sum of £320 for expenses of administration- upon the estate of Harry Maxwell Bushby. He also allowed the executor $50 commissions tipon a transfer of a $5,000 piece of real property by the executor to the contestant. The real property was in the name of Mary Emily Hull. He refused to . allow to contestant interest upon the one-half-of the Harry Bushby estate because of the fact that she had’ received her support therefrom.
    
      H. T. Wright, for the- executor.
    
      Frank Talbot, for the contestant.
    
      
       Chap. 452, amdg. 1 R. S. 730, § 63.— [Rep.
    
   Smith, J.:

At the threshold of this discussion it is necessary to determine the extent of the surrogate’s jurisdiction. Assuming to account as executor of Mary Emily Hull under her will this executor has been compelled to account for the moneys which she received as administratrix of the estate of Harry Maxwell Bushby. The objection first raised upon this appeal is that any claim this contestant had against the estate of Mary Emily Hull by reason of moneys received by her as such administratrix is a claim that should be adjusted by action brought in another court, the determination of which is beyond the jurisdiction of the surrogate. Ordinarily the surrogate has not the power to determine a claim made against an estate except upon written stipulation and consent of all parties. Under section 2606 of the Code of Civil Procedure it is provided that where an administrator dies a person interested in the estate may require the executor of the administrator to account for the acts of the deceased as administrator. James Hull, therefore, was liable, under this section, to account not only for his own acts as executor of the estate of Mary Emily Hull under the will, but for her acts as administratrix of the estate of Harry Maxwell Bushby, and to the extent of the interest of this contestant in the estate of Harry Maxwell Bushby this executor was bound to account to the contestant, provided moneys came into his hands from the estate of Mary Emily Hull sufficient to satisfy said claim. In accounting under the will of Mary Emily Hull he cannot ignore her liability for the moneys received as administratrix of her first husband. All the parties were before the court for the determination of the extent of that liability, and the surrogate clearly had jurisdiction under section 2606 of the Oode of Civil Procedure, to determine the questions raised thereupon. (See Matter of Hicks, 170 N. Y. 195 ; Fowler v. Hebbard, 40 App. Div. 108.)

As the executor was thus required to account for the acts of his decedent as administratrix of Harry Maxwell Bushby, we are at a loss to understand why the referee declined to allow him to show payments made by the deceased to the contestant. It is claimed here that the questions were not in proper form; that a book of the decedent showing these payments was attempted to be introduced in evidence without proper proof thereof. The answer to this claim would seem to be that the referee excluded the evidence specifically upon the ground that- the inquiry was not “ within the scope of or contemplated by the order of the Surrogate in this matter.” This was one of the objections urged by the contestant. To hold that the referee was invested with power to determine the liability of Mary Emily Hull to the contestant by reason of moneys received from the Bushby estate, and to hold that he was without power to consider what payments had been made upon that liability, is clearly paradoxical. The referee has reported,, and the Surrogate’s Court has confirmed the report, fixing the liability of the estate of Mary Emily Hull to the contestant for moneys received as administratrix of Harry Maxwell Bushby, and this has been done while refusing to allow the representative of Mary Emily Hull to show payments upon that liability. It is not an answer to this erroneous ruling that the contestant was not allowed interest upon this fund by reason of the fact she received her support from her mother. The payments may have been largely in excess of such interest, and the estate may have been entitled to a credit not only for the interest which would otherwise have been due, but also for the payments made. These matters can only be determined upon a complete accounting. For this error of the referee the executor is clearly entitled to a new hearing upon this account.

This conclusion renders it unnecessary to discuss the other questions raised by the appeal. Inasmuch, however, as they must again arise, it is perhaps proper that we express an opinion as to some of them. It is difficult to sustain the granting or the allowance of fifty dollars to the executor upon the transfer of the real estate to the contestant. This would seem to be unauthorized under Phœnix v. Livingston (101 N. Y. 451); Matter of McGlynn (41 Misc. Rep. 156); Roosevelt v. Van Alen (31 App. Div. 1, 3, 5). The credit to the estate of £300 paid for illegal debts is not warranted in law. While it is hardly conceivable that a natural child should object to a credit to her mother for the payment of her father’s debts of honor, this contestant has the legal right so to object, and if she chooses to assume that position the court must sustain her objection.

The counsel have argued at length upon the construction of the will of Mary Emily Hull and the effect of the release to herself by the contestant of her right to the income and proceeds of the residue under said will. The assignment by the annuitant was made after the repeal of the statute authorizing the destruction of the trust by a release of one entitled to the rents and profits. (See Laws of 1903, chaps. 87,88.) It is doubtful if that release can be effective to accomplish the object sought while the part of the rents and profits to which the contestant was entitled was indefinite and undetermined. Without, however, deciding this question, we are of opinion that under the will of Mary Emily Hull the entire residue of the property passed to the contestant. The executor claims that she is entitled only to the income therefrom, and that at her death the property must descend as the property of an intestate. The provision for the accumulation of income is confessedly void. That the testatrix intended that her daughter should have the corpus as well as the income of the property seems, under all the facts surrounding the making of the will, to be unquestionable. There is a legal presumption against intestacy, and it is not probable that the testatrix intended the substance of her property should go to strangers as it would if left as intestate property upon the death of the contestant. The contestant was her only child. There is nothing to indicate that the relations between them were not those of affection which are ordinarily found. There is an evident intent, by the provision for the accumulation of income and by the attempted trust, to put a restraint upon the daughter’s control and subject it in part to the control of her husband, this executor. Hot for a moment, however, can a doubt be entertained that it was the intention of the testatrix that both principal and income of the property should ultimately go to the benefit of her daughter. This construction of the will is sustained, I think, by authority. In Thomas v. Troy City National Bank (19 Misc. Rep. 474) Mr. Justice Chester lays down the rule thus: If the will should be held to contain simply a gift of the use and income of the estate instead of the fee or the absolute title, there being no disposition in it of the remainder, it should be held under the authorities that there was a devise and bequest of the fee by implication to the parties to whom the income is given. (Masterson v. Townshend, 123 N. Y. 458; Philipps v. Chamberlaine, 4 Ves. 51; Earl v. Grim, 1 Johns. Ch. 497.) ” In Paterson v. Ellis (11 Wend. 298) Senator Edmonds says: “ It is also a rule of law that a devise of the interest or of the rents and profits is a devise of the thing itself, out of which that interest or those rents ■ and profits may issue. (Citing authorities.) This rule, however, is to be understood with some limitations. Where the intention of the testator to give only the use is. clear, manifest and undisputed, the rule must yield to the stronger force of the intention, but where it is doubtful whether the use only or the absolute ownership was intended to be given, the rule has been allowed to have a controlling effect. It is by no means clear that in the case before us the use only was. devised. If there is any doubt, it is whether the ownership was not intended to be given, and the rule to which I have adverted comes with great propriety to our aid in solving the question.” In Williams on Executors (Yol. 2 [7th Am. ed.], p. 478) the rule is stated : Where the ‘ interest ’ ’ or produce ’ of a fund is bequeathed to a legatee, or in trust for him, without cmy limitation as to continuance, the principal will be regarded as bequeathed also.” This provision for the payment of the income of this fund is not limited - in the will to the life, of the contestant, but is “ without any limitation as to continuance.” This fact, in connection with the failure to provide for a remainder, in view of the strong inference that the whole fund was intended for the benefit of the contestant, would seem to preclude the construction which should declare this property intestate property upon the death, of the contestant.

It is further contended that under the will of Tobias Frere, upon the death of Eliza Rebecca Bushby, in case she shall be married at the time of her decease, the trustees are to hold the property in trust for the persons who,, at the time of her decease, would, under the statutes for the distribution of the estate of persons dying intestate, be entitled to the same. It is, therefore, claimed by the executor that inasmuch as Eliza Rebecca Bushby died leaving her husband, one Bauldrey, her surviving, the trust still continues under the will of Tobias Frere. We do not so read the will. In case Eliza Rebecca Bushby shall leave children who shall attain the age of twenty-one years, or dying under that age, shall leave issue, the direction of the will seems to be that the property shall go to such child or its issue if the child be dead. The provision as to the death of Eliza Rebecca Bushby while married seems to be upon condition that there shall be no child or grandchild living. The practical construction put upon this will has given the property to Mary Emily Hull as administratrix of the estate of Harry Maxwell Bushby. Eor the moneys thus received her executor now must account.

The surrogate’s decree should be reversed and a new trial granted, with costs of appeal to executor from the fund.

All concurred ; Parker, P. J., and Houghton, J., in result.

Decree reversed and new trial granted, with costs of appeal to executor payable out of the fund.  