
    Harold S. Renwick, Respondent, Appellant, v. Henrietta H. Weeden, Appellant, Respondent, Impleaded with William B. Macomber and Clara Macomber, Respondent, and George Welwood Murray, as Substituted Trustee under the Last Will and Testament of Frederick W. Renwick, Deceased, and Claire R. Renwick, Respondents, Appellants.
    First Department,
    December 30, 1909.
    Will construed — devise in trust with contingent remainders — costs — action to determine claim to lands — extra allowance.
    A will conveyed lands in trust, the net income, or so much thereof as the trustee should deem necessary, to be paid to the use of two sons during their respective lives, not more than one-half to the use of each. It was further provided. that such portion of the income as the trustee did not deem necessary for the use of the sons should be accumulated during the infancy of any children that might be born to the sons, the accumulation to be divided pro rata among such grandchildren when the first of them should attain his majority. It was further provided that should either of the sons die leaving issue surviving, the income from the principal of his portion of the trust should be applied to the use of such; issue in equal shares until they respectively attained majority — the principal as each grandchild attained majority to be divided;—and each to receive an equal share thereof. If either of the sons should die without issue surviving, the income which had been applied to his use, or so much thereof as the executor deemed necessary, was directed to be applied to the use of the other son, any surplus to be accumulated for the grandchildren. By a residu- . ary clause the testator left the rest of his property to his widow. The two life beneficiaries died, one with and the' Qther without issue surviving, the one without issue dying last.
    
      JHeld, that the half interest in the lands of the life beneficiary who died without issue did not fall into the residuary estate, but on the contrary went to -the issue of the other son.
    In an action to determine a claim to real property brought under sections 1638-1650 of the Code of Civil Procedure, where a will is construed so as to support the plaintiff’s claim, he is entitled to costs but not to an extra allowance. The defendants are not entitled either to. costs or extra allowance. The costs awarded to the plaintiff should be charged against the defendants, not made payable out of the property.
    Cross-appeals by the plaintiff, Harold S. Renwick, and the defendants. George Wei wood Murray, as substituted trustee, etc., and another, and by the defendant, Henrietta H. Weeden, from parts of a1 judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 12th day of May, 1909, upon the decision of the court rendered after a trial, at- the Hew York Special Term.
    
      John P. TIerren> for the plaintiff.
    
      George Welwood Murray \_R6bert MeO. Marsh with him on the brief], fortlie defendants Murray, as trustee, and Claire R. Renwick.
    
      Truman M. Raldwin, for the defendant Henrietta H. Weeden.
   McLaughlin, J.:

This action was brought to compel a determination of a claim to real property under sections 1638, to 1650 of the Code of Civil Procedure.

The plaintiff 'and the defendants Murray, as trustee, and Claire R. Renwick had a judgment to the effect that the other defendants had no claim to the real property in question, but they appeal from, the judgment in so far as.it directs,the costs, including extra allowances, to be paid out of the real estate, and the defendant Henrietta H. Weeden appeals from so.much of the judgment as.determines that she has no claim or interest therein.

Frederick W. Renwick, Sr., died on the 27th of March., 1892, seized in fee simple of the premises in question. He left a, will, . which was probated, and the main question in the case turns upon the proper- construction of its 2d clause. He left him surviving his son Frederick W., Jr., unmarried; his son Stanhope C., who "was then married and had two children; and his widow, now deceased. The 2d clause of the will, or so much of it as is pertinent to the question presented, reads as follows: “ I give the lot * * * known as number 31 Park Bow * * * to my executrix and executors * * * in trust to collect and receive the rents and income therefrom and after paying all expenses * * * to apply the net income therefrom or so much thereof as they shall deem necessary and judicious to the use of my sons Frederick W. and Stanhope C. during the term of their respective lives, not more than one-half to the use of each, without the power of anticipation * * * and without the power of assignment, and such portion of the said income as my executrix and executors shall not deem necessary or advantageously applied to the use of my said sons to be accumulated during the infancy of any children born or to be born to my said sons, such accumulated fund to be divided fro rata, equally among, such children of my. sons when the first of them shall attain his or her majority.” Then follow provisions giving the executors power to lease, etc., and the will then provided that “ If either of my s.ons shall die leaving issue him surviving, the income from the principal of this trust theretofore applied to the use of such son shall be applied to the use of such issue in equal shares' until they respectively attain majority, the principal as each child attains niajority to be divided, each child to receive an ■ equal share thereof. If either of my sons shall die leaving no. issue him surviving, the income "• theretofore applied to his use, or so much thereof as my executors shall deem expedient, shall be applied to the use of the other son, any surplus to be accumulated as before directed for the grandchildren.” In the residuary, clause he gave all the rest, residue and remainder of his property to his widow, who died in 1901. The son Stanhope died December 29, 1906, leaving him surviving the plaintiff and the defendant Claire B. Ben wick, his only children and heirs at law. Frederick died June 12, 1907, without issue.

The defendants other than Murray, as trustee, and Claire B. Ben wick, claim that the principal of the one-half, the income from ■ which was paid to the son Frederick, he having died without issue, passed under the residuary clause of the will to the widow, and upon her death to her sister, the appellant Henrietta H. Weeden. .

A careful consideration of the whole will indicates, as it seems to me, that the testator did not intend such disposition of the real estate in question; on the contrary, he intended- that after the death of the life beneficiaries (the two sons) such real estate was to go to his grandchildren, that is, the children of his two sons. This disposition is found, if not directly expressed, necessarily to bé implied from the language used ip the 2d clause, as interpreted by the whole will, it will be observed that such portion of the income as is not used for the support of the two sons is to be accumulated for the grandchildren pro rata. Then, after the death of either son, the income theretofore applied to his use is to go to his children until they reach the age of twenty-one years, when they are to take the principal, and in case either son should die leaving no children, a cross-remainder is given to the other son. The 6th clause of the will also indicates the same intent, where the testator, refers to the 2d clause as “ the trust created by the second clause of this my will for my sons and their issue.”

This conclusion renders it unnecessary to consider the effect of the agreement made between the widow and the two sons.at or immediately prior to the probate of the will, but under that agreement it may well be doubted whether she and all persons thereafter clairning under her were not estopped from asserting that they had any interest in the real estate, the title to .which claim is here made.

The trial court, therefore, was right in reaching the conclusion that the property in question passed under the will of Renwick, Sr., to the plaintiff and the defendants Murray, as trustee, and Claire R. Renwick; that, the other defendants had no claim to or interest in the same, and that the plaintiff was entitled to costs. Had the judgment stopped there, then it would be affirmed, but he granted, in addition to the costs,' |1,000 extra allowance and also granted costs to the defendants Murray as trustee and Claire R. Renwick, together with an extra allowance of $1,000, and directed that all of the costs and allowances be recovered “ out of the property herein referred to.”

The plaintiff succeeded in the action and costs were properly awarded to him, except the extra allowance, which, under the circumstances, I do not think should have been granted. Nor do I think that costs, including an extra allowance, should have been awarded to the defendants Murray as trustee and Claire R. Renwick; .nor was there any authority for directing that the costs awarded should be recovered out of the property.”

The judgment appealed from, therefore, is modified by allowing the plaintiff the sum of $148.25 costs as taxed in the action against the defendants Henrietta H. Weeden, William B. Macomber and Clara Macomber, and as thus modified affirmed, with costs to the plaintiff against the defendant Henrietta H. Weeden.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Judgment modified as stated in opinion, and as modified affirmed, with costs to plaintiff against Henrietta H. Weeden. Settle order on notice.  