
    In the Matter of the Judicial Settlement of the Estate of Isaac Hoyt, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Will—Construction.
    By testator’s will he gave to his daughter Hattie the net rents, interest and income of all his real estate in the village of Amity, "the same to be collected by my executors * * * and paid to her annually for and during her natural life,” and in case of a sale the proceeds to be invested and the interest paid to her as aforesaid. The residue of the estate he directed the executors to lease and deposit the net income in bank to create a fund to help pay oif any indebtedness against the same. The will concluded as follows: "and at the decease of my daughter Hattie to be equally divided between each of my grandchildren her surviving, share and share alike, her children and the children of my daughter Annie.” Held, that the residue went at once to the two daughters equally, because the provision as to accumulation was illegal, and a life estate only was given in the Amity lands to the daughter Hattie, and that such lands were given to the grandchildren living at her death per capita.
    
    Appeal from the decree of the surrogate of Orange county made on a settlement of the accounts of executors.
    The will of the testator appears in the opinion. The surrogate held that testator gave only a life estate in the Amity lands to his daughter Hattie and died intestate as to the remainder in said lands, and directed that upon the death of Hattie the trustees should pay the principal of any fund derived from the sale of said lands to the legal representatives of the daughters equally.
    
      Gilbert O. Hulse, for Hattie L. Hoyt, app’lt; John J. Beattie, for ex’rs, resp’ts; W. D. Mills, for Annie A. Conklin, resp’t.
   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 Hew 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 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 sales, 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. R. Waterbury and Wm. J. Sly, executors of this, my last will and testament, hereby revoking any and all other 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 of rents, issues and profits covers afee, 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 iife. 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.” Matter of Smith, 131 N. Y., 239; 43 St., Rep., 271. 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, to b¿ 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 de-

cease 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. No provision is made for the payment of anyportion 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.

Dykman and Pratt, JJ., concur.  