
    Alforata Reed, Adm’rx, etc., v. Augustus Cruikshank, Trustee, etc.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 27, 1887.)
    
    Annuities—Apportionment of—When allowed—Chapter 543, Laws-1875.
    An annuity not only may, but should be, apportioned where no time for payment has been mentioned, for there the right of the annuitant to payment depends upon no particular day, but it accrues continuously. Chapter 543, Laws 1875, making annuities afterwards granted apportionable, evidently proceeded upon this understanding of the law, for it has been made applicable only to annuities, dividends and other payments becoming due at fixed periods. The inference from the act is that those other annuities were understood to be apportionable without the aid of the act, and that it was those accruing at fixed periods which required the interposition of the legislature to make them also apportionable, and in that way create a uniform rule applicable to all cases, and to carry that intent into effect the statute was enacted. Distinguishing Tracy v. Strong (3 Conn., 659), and Irving v. Banlcine (13 Hun, 147).
    Case agreed upon and submitted pursuant to section 1279 of the Code of Civil Procedure.
    
      John Graham, for pl’ff; Edward Van Ness, for def’t.
   Daniels, J.

—The claim made by the plaintiff is for the payment of so much of an annuity of §2,000 as had accrued at the time of the death of the intestate. This annuity was provided for her by the will of Benjamin Lord, who directed his executors to take possession of all of his estate, real and personal, and receive the rents, interest, dividends and income thereof, and out of the same to keep the real estate in repair and pay the charges thereon, and keep the personal estate invested, and to call in and reinvest the same from time to time, as they in their judgment thought most for the interest of the estate; and the net income they were directed to dispose of so far as it should be obtained from store No. 147 Cedar street, by payment of it to Mary Van Veghten. And he then directed his executors, or executor: “Out of the residue and remainder of said net income of my said estate to pay to Sarah Louisa Eeed, wife of David L. Reed, of the city of New York, it being my intention henceforth as a daughter to adopt her, the sum of $2,000 a year during her natural life, on her sole and separate receipt, the same as if she were a feme sole, free from the control, interference or debts of her present or any future husband.”

This annuity was paid to her until the 5th day of July, 1885, and she departed this life on the 7th of June, 1886; and her administratrix now claims from the defendant, who is the trustee of the estate under the will, the payment of so much of the annuity as had accrued up to the day of the decease of the intestate. The obligation to make this payment has been denied under the force of the authorities holding that an annuity payable at a specified time is not apportionable, and the decisions of Heizer v. Heizer (71 Ind., 526), Wiggin v. Swett (6 Met., 194), Tracy v. Strong, 2 Conn., 659), and Irving v. Rankine (13 Hun, 147), support this rule; but they really have no application to this dispute, for they each refer to and proceed upon, a state of facts exhibiting the intention to be, that the annuity should only be payable on a specific day, or at the expiration of a specific period of time. These decisions proceed upon the construction that where the annuity is dependant on such a direction, no right to the payment of the money accrues before the arrival of the period or day designated for payment. Where no such day or period has been mentioned, neither these authorities nor the rule maintained by them can be applicable. And it would seem to follow from that circumstance that the annuity not only may but should be apportioned where no time for payment has been mentioned, for there the right of the annuitant to payment depends upon no particular day, but it accrues continuously, and perhaps it might not be too much to say, from day to day. The only circumstance on which its payment was made dependant in this instance, was that it should be out of the net income of the testator’s estate, and that income from its situation and condition was continually accruing, and as it accrued the annuitant became entitled to her money. It is true she had been in the habit of receiving it at the expiration of each year from the time of the decease of the testator. But the will contained nothing postponing her' right to it at that time. • Neither did it direct that it should be paid to her in bulk, but the direction was that she should receive the $2,000 a year during her natural life out of the net income of the estate; ■and as that net income would accrue, she would appear in like manner to be, from time to time, entitled to its payment.

Chapter 542 of the Laws of 1875, making annuities after-wards granted apportionable, evidently proceeded upon this understanding of the law, for it has been made applicable only to annuities, dividends and other payments becoming due at fixed periods. And it could not have been the intention of the law to make such annuities apportionable, while those not becoming due at any fixed period should be left unapportionable. The inference from the act is that those other annuities were understood to be apportionable without the aid of the act, and that it was those accruing at fixed periods which required the interposition of the legislature to make them also apportionable, and in that way create a uniform rule applicable to all cases, and to carry that intent into effect this statute was enacted. It certainly would be strikingly incongruous and unjust to hold that annuities payable at fixed periods had been made apportionable by this act, and those not so payable should not be apportioned at all. That was not the understanding of the law upon which the act has proceeded. Neither could it be, for the authorities have held annuities not to be apportionable, only where they have been made payable at particular periods, and they consequently carry with them a decided implication, at least, where they have not been so made payable, but are payable generally as the annuity was directed in this instance, that the rule upon which these authorities proceeded would not apply. The fourth subdivision of the testator’s will, as well as the one preceding it, also tends to maintain this construction, for that directs that the residue and remainder of his estate, not previously disposed of, should be divided among the persons mentioned therein. And as this annuity was previously disposed of, it could not have been intended to be included within this subdivision.

It may be presumed from the usual, or common division of rentals into quarterly payments, that the rent of the store, No. 423 Broadway, was paid in that manner, although the fact has not been so stated in the case. It has not been stated otherwise, and the presumption would be, that quarterly payments of the rents were reserved. That store yielded as annual rent of $4,750, and out of its rental this income might very well have been as it probably was, payable. And that would secure to the annuitant even if the annuity did not accrue from day to day, the right to call for payment, at least, at the expiration of every three months. All, either herself or the executor was required to consider in making the payments, was the condition and income of the estate, and that would be reasonably conformed to, by requiring the payments to be made in this manner. Neither the will nor any of the facts presented by the agreed case exclude this light, but it is entirely consistent with the direction given in the will, the only restrictions upon which was that the payment should be made out of the income of the estate. And the payments being designated in that manner, may reasonably be expected to have been intended to be made, as that income would accrue and supply the executor with funds to make them. The defendant stands-in the same position as the executors mentioned in the will. He is bound to perform the same obligations in the same manner as was required from them. And both the justice of the case and the probable intent of the testator in providing for this annuity, well support the determination that payment should have been made in this manner, and that the plaintiff as the administratrix of the annuitant is-entitled to recover three-fourths of the annuity, with interest thereon from the time the last quarterly payment, could, under this construction of the will, have been demanded, and judgment to that effect should be directed in her favor-under the submission made of this controversy. .

Van Brunt, P. J., concurs.  