
    Alonzo C. Monson, Ex’r, Resp’t, v. The New York Security & Trust Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    W ill—Tbusts—Sbcumtibs.
    Where a will gives to the executors the residue of the estate in trust for the life of the widow, with poWer of sale and reinvestment, but expresses testator’s preference that investments made by him should be continued so long as. in the judgment of the executors, it could be done without loss to the estate; and upon the death of the widow directs that the proceeds and investments be divided into as many shares of a specified amount as he should have daughters then living and of daughters who had died leaving descendants, ana hold the same in trust for such daughter during her life, Held, that it was the intention of testator that each of the trusts should consist of the specific sum mentioned in money value only; that there was no specific gift of the securities as they should stand at the death ■ of the widow, and that the trust sums are not to be augmented by an increase in value of the particular securities of the whole estate on the theory that portions of those precise securities should have been devoted to constitute the investment of each trust fund.
    Appeal from judgment of special term, entered upon decision of the court
    Action to obtain a settlement of accounts and discharge of plaintiff as executor and trustee under the will of Eeuben Withers, deceased.
    The will was as follows :
    
      First. I will and direct that all my just debts and funeral expenses be paid by my executors so soon as conveniently may be done after my decease. Second. I give and bequeath to my dearly beloved wife, Matilda Anne Withers, all my wines, liquors and family stores which may be in the possession and use of myself and my family at the time of my decease forever. Third. I bequeath to my son Alfred D. Withers the interest now accrued and which shall hereafter accrue during the residue of his natural life upon the two bonds and mortgages, one made by Caleb La Grange (his wife uniting in the mortgage) to John B. Montgomery, to secure the payment of five thousand dollars and interest, dated the first day of May, one thousand eight hundred and forty-eight, by said Montgomery assigned to the Poughkeepsie Savings Bank, and by said bank to me; and the other made by my said son Alfred D.. Withers (his wife uniting in the mortgage) to George W. Berrian,. Jr., of the city of New York, to secure the payment of eight thousand dollars and interest, and by the said Berrian assigned tome ; said mortgages being upon the farm now occupied by my said son in the town of Vestal, in Broome county, in this state. And it is my wish that no step shall be taken by my executors for the collection of the principal of said mortgages during the life of my said son, so long as he shall continue to occupy the-said farm, and shall execute such papers as may be advised by counsel, and required by my said executors, to prevent the debts from being barred by any statute of limitations ; and, in the case of the collection of said principal sums during the life of my said son, I give him the interest accruing thereon during his lifetime, such principal to be invested by my executors, and the interest collected and applied to his use by them. From and after the death of said son, I give and bequeath the said principal sums to his descendants then living, in equal shares, per stirpes, and not per capita, to them, their executors and administrators, forever. Fourth, I give, devise, and bequeath all the rest, residue and remainder of my estate, real and personal, which I am now seized or possessed of, or entitled to, or which I may be seized or possessed of, or entitled to, at the time of my decease, to my executors hereinafter named, to have and to hold to them as joint tenants, and not as tenants in common, upon the trusts and with the powers following, that is to say : Fifth. To take possession of all my estate, real and personal, and to collect and receive the rents, issues, income and profits thereof with power to sell all or any part of my real estate at such times and in such manner, and on such terms and conditions, either at public or private sale, and for cash or on credit, or partly for cash and partly on credit, as to my qualified executors for the time being may seem expedient and proper, and to collect and receive the proceeds of such sales, and to collect and get in all my personal estate, and to keep my estate and its proceeds safely and securely invested; my own preference being that investments made by. me in my lifetime should be continued so long as the same, in the judgment of my executors, can be done without loss or detriment to my estate, and my will being that my house and appurtenances, furniture and contents thereof, both of use and ornament in housekeeping, in the Second avenue, in the city of New York, now occupied and used by me for my family residence, shall not be sold by my executors so long as my wife shall continue to occupy and use the same, but that she shall be permitted so to use and occupy the same for her residence and housekeeping. Sixth. To set apart out of my estate, and the proceeds and investments thereof, an amount sufficient to produce the clear yearly income of nine hundred dollars, and to apply the said clear yearly income of nine hundred dollars 3'early, and every year, to the use of my son Reuben B. Withers during his natural life. Seventh. From and after the death of my said son Reuben B. Withers, I give, devise and bequeath the capital specified in the sixth article to his descendant or descendants, if any, whom he shall leave surviving him, in equal shares and portions, per stirpes, and not per capita;■ if he shall leave no descendants surviving him, then to my son Alfred D. Withers, if he shall then be living; or, if he shall not be living, then to the descendant or descendants of my said son Alfred then surviving, if any, share and share alike, per stirpes and not per capita, forever. Eighth. To apply the net rents, issues, income and profits of all the rest, residue and remainder of my estate, and of the proceeds and investments thereof, to the use of my said wife, for and during her natural life, free from the debts, contracts, control, or engagements of any other person. Ninth. Upon the death of my said wife, to allot and set apart out of the said rest, residue and remainder of my estate, and of the proceeds and investments thereof, (exclusive of what is disposed of in the third, sixth and seventh articles of this, my will), into as many shares, each of the value and amount of twenty thousand dollars, as there shall then be survivors of my three daughters, Elizabeth Mary Center, Euphemc D.Clason, and Virginia Paine, and of the descendants of either of my said three daughters who may have previously died leaving descendants or a descendant, and also of the descendants of my daughter Cora, whether she bo then living or not, all the descendants of either deceased daughter counting but as one, however, for the purpose of such allotment, and to apply the net rents, issues, income and profits of one of such shares or portions to be set apart for that purpose to the use of each of my said three daughters, Elizabeth Mary Center, Eupheme D. Clason and Virginia Paine, who may then be living, during the natural life of such daughter, respectively, free from the debts, contracts, control or engagements of any other person, and in like manner, during the life of my daughter Cora, to apply the net rents, issues, income and profits of one of such shares or portions to be set apart for that purpose to the use of the descendants of my daughter Cora who may be living, from time to time, during her lifetime, in equal shares, per stirpes, and not yer capita, my said executors, in their discretion, being at liberty to make such application by paying the same over to my said daughter Cora for the use and benefit of her said descendants, but being under no obligation so to do ; and if either of my said three daughters, or my said daughter Cora, shall not then be living, to divide and distribute one of such shares to the descendants or descendant of each such deceased daughter, share and share alike, per stirpes, and not per capita. To have and to hold to them, respectively, their respective heirs, executors and administrators, forever. Tenth. Upon the death of each of my said three daughters who shall have been living at the time of the allotment directed by the ninth article of this, my will, and also upon the death of my daughter Cora, to divide and distribute the share or portion of my estate, and of the proceeds and investment thereof, of which the income is, in pursuance of the said ninth article of this will, to be applied to the use of such daughter during her life, or to the use of the descendants of my daughter Cora during her life, to and among the descendants of such daughter, if she shall leave any her surviving, share and share alike, per stirpes and not per capita, and, if such daughter shall leave no descendant surviving her, to and among the then survivors of my said three daughters, other than my daughter Cora, and the descendants of either of my daughters who may have died leaving descendants or a descendant, share and share alike, per stirpes, and not per capita. To have and to hold to them, respectively, their respective heirs, executors, and administrators, forever Eleventh. Upon the death of my said wife, if my said sons Reuben B. Withers and Alfred D. Withers shall then both be living, or if the said Reuben B. shall be then living, and the said Alfred D. shall have died, leaving descendants or a descendant who shall then be living, to allot and set apart out of the rest, residue and remainder of my estate, and the proceeds and investments thereof, if any, remaining after the deduction of the said equal shares or portions of $20,000 each, specified in the ninth article of this, my will, a value and amount sufficient, together with the capital specified in the sixth article of this, my will, to make up the one-half of the value and amount of my residuary estate, its investment and proceeds, remaining after the deduction of the said shares or portions of $20,000 each, specified in the said ninth article, computing the capital specified in the sixth article as a portion of such residue, and to apply the net rents, issues, income, and profits of the said one-half of such residue, if more than the capital specified in the sixth article, but, if less than the capital specified in the sixth article, then of the whole of that capital, according to the provisions of the sixth article, to the use of my said son, Eeuben B. Withers, during the residue of his natural life; and from and after the deaths of my said wife and son, Eeuben B. Withers, I give, devise and bequeath the said share or portion of my estate, its investments and proceeds, if any, which would be added to the capital specified in the sixth article by virtue of this article, to the descendants of my said son, Eeuben B., if he shall leave any surviving him, share and share alike, per stirpes, and not per capita ; and, if he shall leave no descendants surviving him, then to my son, Alfred D. Withers, if living, or to his descendants, if he shall have died leaving a descendant or descendants who shall be living, in equal shares, per stirpes, and not per capita, forever. Twelfth. Upon the death of my said wife, if my sons, Eeuben B. Withers and Alfred D. Withers, shall then both be living, or if the said Eeuben B. shall, then be living and said Alfred JD. shall have died, leaving descendants or a descendant who shall then be living, I give, devise, and bequeath all the rest, residue and remainder of my estate, its investments and proceeds, after the deduction of the said shares or portions of $20,000 each, specified in said ninth article, and after deduction of the capital specified in the sixth article, if such rest, residue or remainder shall be less than the capital specified in the sixth article, but, if it shall be more, then the balance of the said rest, residue and remainder, after deducting therefrom, and adding to the capital specified in the sixth article, sufficient to make said capital specified in the sixth article equal to what is left, to my said son, Alfred D. Withers, if living, or to his descendant or descendants who shall then be living, share and share alike, per stirpes, and not per capita, forever. Thirteenth. Upon the death of my said wife, if my said son, Eeuben B., shall not be living, I give, devise, and bequeath the share or portion, if any, of the rest, residue and remainder of my estate, and its proceeds and investments, which would be added to the capital specified in the sixth article by virtue of the provisions of the eleventh article if my said son Eeuben B. were then living, to the descendant or descendants of my said son Eeuben B., if any shall be living, share and share alike, per stirpes, and not per capita, and, if none shall then be living, then to my son Alfred D. Withers, if living, or his descendant or descendants, if he shall have died leaving any who shall be living, in equal shares and portions, per stirpes, and not per capita, forever. And, in the same contingency provided for in this article, I give, devise and bequeath the share or portion of the said rest, residue and remainder which is given, devised and bequeathed to my son Alfred D. Withers, or his descendant or descendants, by the twelfth article, in the contingency therein provided for, to my said son Alfred D. Withers, if living, or to his descendant or descendants, if he shall have died leaving descendants or a descendant who shall then be living, in equal shares or portions, per stirpes, and not per capita, and, if none shall be living, then to the descendant or descendants of my said son Eeuben B. Withers, who shall then be living, in equal shares and portions, per stirpes, and not per capita. Fourteenth. Upon the death of my said wife, if my son Reuben B. Withers shall then be living, and my son Alfred D. Withers shall have died, leaving no descendant who shall then be living, then to apply the net rents, issues, income and profits of the whole rest, residue and remainder of my estate, after the deduction of the said share or portions of $20,000 each specified in the ninth article, to the use of my said son Reuben B. Withers during his natural life; and from and after his death, I give, devise and bequeath the whole of the said rest, residue and remainder, after such deduction, to his descendant or descendants, if any, whom he shall leave surviving him, in equal shares and portions, per stirpe and not per capita. Fifteenth. I hereby declare that the reasons why no provision is made for my son David Dunham Withers, and no greater provision for my son Alfred D. Withers, are that my son, said David Dunham Withers, is already wealthy in his own right, and that I have already made large advances to my son Alfred D. Withers. Sixteenth. I hereby constitute and appoint my son David Dunham Withers, and my friends James M. Waterbury, of the city of Brooklyn, and George R. J. Bowdoin of the city of New York, executors of, and trustees under, this, my will. Lastly. I hereby revoke and annul all former and other wills by me at any time heretofore made, declaring this, and none other, to be my last will and testament.
   The following is the opinion at special term:

Patterson, J.

The important question, and the only one requiring special consideration in this cause, relates to the construction to be given to that clause of the will of Mr. Reuben Withers by which the trusts for three of his daughters and the descendants of a, fourth are created. They date from the death of the testator’s widow, which accrued in 1879. Notwithstanding the ingenious argument of the counsel for the New York Security & Trust Co., I am persuaded that under the ninth and subsequent clauses of the will and from the structure of the whole instrument, it was the intention of the testator to have each of these four trusts consist of a specific sum of twenty thousand dollars in money value only, and that the executor would have performed his whole duty had he so established those several trusts by investing the amount of each in any authorized court security, and that had he done otherwise and a loss resulted he might well have been held to accountability for it. The residuary estate for the purposes of these trusts was to be diminished by $80,000. If to constitute them it was necessary to release that sum even at the cost of the whole of such residuary applicable under the will the executor would have been protected in doing so. A specific gift of the securities of the estate as they might stand in executors’ hands at the death of Mrs. Withers could not have been contemplated, for there was a power of sale and it is impossible that the testator could have imagined even how the estate would be invested at the death of his widow. These four amounts were fixed capital sums to be securely invested without reference to the preservation intact or the actual allotinent in specie of securities held by the executor. Nothing contrary to this view is to be inferred from the retention by the executor of the securities in the same form of investment in which they existed at the time of Mr. Withers’ death. He took the risk of that, and by the assent all paid interest for years to the beneficiaries on the several sums, without reference to what each class of securities earned. I am convinced that these trust sums are not to be augmented by an increase in value of the particular securities of the whole estate on the theory that portions of these precise securities should have been devoted to constitute the investment of each separate trust fund.

Kellogg, Rose & Smith, for app’lts; Shipman, Larocque & Choate, for resp’t.

There being no questions raised as to the accounts, the whole case may be disposed of without a reference. I have adopted the findings of fact proposed by the plaintiff’s attorneys and the conclusions of law presented by Mr. Hand, the latter apparently covering the whole case. Judgment in accordance with the findings ; costs of all parties to be paid from the estate and decree to be settled on two days’ notice.

Per Curiam.

Judgment in this case is affirmed, with costs (1) to the plaintiff; (2) to the defendants Reuben B. Withers and others ; (3) to the United States Trust Company, and to the New York Security & Trust Company, as trustee, payable out of the estate of Reuben Withers, upon the opinion of Mr. Justice Patterson at special term.

Van Brunt, P. J., Follett and Barrett, JJ., concur.  