
    
      In re Chauncey.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    Wills—Constbuction—Income.
    Testatrix bequeathed her residuary estate to trustees, to pay the income to her husband for life, .except that they should apply to the use of D., a member of her family, 8500 per annum out of the said income, during his minority, and the sum of $1,000 after that time, during the life-time of testatrix’s husband, and after his death to apply the sum of 83,000 therefrom to the use of D. for life. She made no further disposition of the fund. The husband died after D. attained his majority, and the income proved insufficient before and after his death to meet the provisions made for D. Subsequently the annual income exceeded §3,000. Held, that D. was not entitled, as against the next of kin, to have the surplus applied to the previous deficiency.
    Appeal from special term, Kings county.
    George W. Chauncey, trustee under the will of Mary L. Kirby deceased, presented his accounts for audit, and the question arose as to what amount should be paid to James E. Delaney, a legatee under the will. Mr. Delaney was reared by testatrix, and occupied a relation towards her equivalent to that of an adopted son. The following extract from the opinion of Mr. Justice Bartlett at special term succinctly states the provision of the will involved: “The testatrix, by the third subdivision of her will, devised and bequeathed her residuary estate to her executors, in trust, to receive the rents and profits, interest and income, and apply the same to the use of her husband, William L. Kirby, during bis life, except that they should apply to the use of James E. Delaney the sum of $500 per annum until he should arrive at the age of 21 years, and then the sum of $1,000 per annum during th.e life-time of the husband of the testatrix, and after his death the sum of $2,000 per annum during the life-time of the said James E. Delaney. Mr. Delaney became 21 years of age on August 31, 1875. Mr. Kirby died on Hovember 11, 1877. The net income out of which the payments to Delaney were to have been made did not prove sufficient in each year to enable the executors to pay him the amount to which he was entitled annually under the will, but in the year beginning December 1, 1887, and ending December 1, 1888, the net income received by the present trustee has exceeded $2,000; and the question arises whether Mr. Delaney is entitled to have the surplus now paid over to him on account of prior deficiencies in yearly payments, or whether the surplus must go to the next of kin of the testatrix. ” The special term decided in favor of Mr. Delaney, and Mary E. Van Aulen appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      
      William, C. Holbrook, for appellant. Johnson <& Lamb, for respondent, James E. Delaney. Charles H. Otis, for George W. Chauncey.
   Barnard, P. J.

The court of appeals in Delaney v. Van Aulen, 84 N. Y. 16, held that the gift to an executor of a yearly sum out of the income of the estate of Mary L. Kirby, to be applied by them to the use of Delaney, was not a demonstrative legacy, and that no part of the body of the estate could be applied to make up a deficiency of income. The peculiarity of the will was that the entire income was given for the use of the husband of the testatrix, less a certain sum, which was first to be deducted for the use of Delaney. The court of appeals held that there was no method of raising the money, except that of the income, provided, and that the husband could only get this, whether it was much or little, and that it was not the intention of the testatrix to give Delaney more than an interest in the same fund, the question whether Delaney had a right to have deficiencies in yearly payments made up from increased avails in after years was left undecided. The second trial of the ease seemed to have only presented the same question, and was decided in the same way. 92 N. Y. 627. The court expressly states that no new facts were presented. Kow, it appears that the husband died on the 11th of Sovember, 1877, and the will gives $2,000 per annum to the use of Delaney during his natural life, from and after the husband’s death. There is no gift of the surplus life-estate in each year. There was a deficiency in the payment of the annual sum, and now there is a small surplus in each year. The question left undecided is therefore presented,—whether the surplus is to be paid to Van Aulen on account of the former deficiency, and whether the future excess of income over the annuity is to be so applied until the deficiency is made up. It seems plain that in the judgment of the court of appeals the provision for Delaney was not an annuity. It is given as the current avails of a fund. The husband of testatrix had the entire rents and profits of the estate after the payment from it of the annual sum. It seems quite dearth at the intention of the will is that, as between the husband and Delaney, there should be no holding over, in lean years, a balance, as against more prosperous ones. The husband in that ease might be left wholly destitute. The court of appeals> gives the more favorable place to the husband. If, as between the husband and Delaney, the account was to be closed each year, there is nothing in her will showing that the testatrix had a different intention, as between Delaney and her next of kin, than she had as between Delaney and her husband. The entire life-estate was given away, and it is only a sum out of -it in each year that is to be applied to Delaney. The testatrix supposed the estate would always be sufficient to pay the sums to Delaney. The testatrix intended that the annual avails should be used as far as they would go. There is nothing in the will showing an intent to put the next of kin in a worse position after the husband’s death, as to the life-estate he had enjoyed. The will is so different in structure from that of Stewart v. Chambers, 2 Sandf. Ch. 382, that it is not an authority for the construction that the deficiency for one year in the payment to Delaney may be carried to a future year. The next of kin were to be provided for after the husband’s death, and it is not likely that she intended to make a different rule as to them. The judgment should therefore be reversed, and a new trial granted; costs to abide event.  