
    In the Matter of the Judicial Settlement of the Accounts of John R. Strang, as Trustee under the Last Will and Testament of Nelson B. Slayton, Deceased, Respondent. Herman C. Hegedorn and William G. Thompson, as Trustees of the Property of Frank Slayton, and the Board of Home Missions of the Presbyterian Church in the United States of America, Appellants, Respondents; Geneseo Gospel Society, Respondent.
    Fourth Department,
    July 9, 1907.
    Will —charitable bequest — valuation of life estate.
    In determining whether a bequest to a" charitable institution aggregates more than one-half of the estate in contravention of chapter 360 of the Laws'of I860’ the value, of the life estate according to the annuity tables, together, with other bequests not charitable, should be deducted from the whole estate in order to determine whether the bequest to charity exceeds one-half.
    Separate appeals 'by Herman 0. Hegedorn and another, as trustees, etc., of Frank Slayton, and the Board of Home Missions of the Presbyterian Church in the United. States of America, from, certain parts, of a decree of the Surrogate’s Court of the county of Livingston, entered in said Surrogate’s Court on the 9th day of August, 1906, settling the accounts of John B. Strang, as trustee of Nelson B. Slayton, deceased, and directing" tile distribution of the funds in his hands. . ■ -
    
      L. W. Widdecombe, for the appellants, respondents, trustees of Frank Slayton.
    
      George B. Adams, for the appellant, respondent, Board of Home Missions.
    
      Lockwood R. Doty, for the respondents the Geneseo Gosjiel Society and Strang, trustee,.
    
      Lewis C. O’Connor, for the respondent Frank Wells.
    
      John B. Abbott, for .the respondent Frank Slayton.
   Williams, J.:

The decree should be modified to conform to the views expressed in this opinion, and as modified affirmed, with costs to the Board of Home Missions to be paid from the estate-.

Humerous questions are raised on this appeal, and all of them have been disposed of in accordance with an opinion writtén by the surrogate. He seems to have arrived at correct conclusions with a single exception, which alone will be considered here. This question is whether the gifts to charitable institutions aggregated more than one-half of the estate, in contravention of chapter 360 of the Laws of 1860. This point was but little discussed by the surrogate in his opinion, and was somewhat obscured by counsel in their presentation of it upon this appeal. It seems to us, however, when clearly stated and understood, to be very simple. ' There is no evidence contained in the record. We must, therefore, rely upon’ the will and "the findings for the facts upon which to base a statement of the matter.

Assuming that the estate amounted to $25,910, and that after giving a life estate therein to the widow, there was given to charities $14,910 and to other legatees $11,000. ' It should be remembered that the widow in fact realized nearly $20,000 from her life* estate. When the testator died, it could not be known the widow would live so long. She was then sixty-tliree years old, and lived nearly twenty years thereafter. Her expectancy of life, under the .¡Northampton tables, which were then in-,force, was, however, only seven and seven hundred and forty-two one-thousandtlis years, and the value of her life estate estimated upon such expectancy was only about $10,000. Of this amount $5,100 came from the amount given to charities, and $4,300 came from the amounts given to other legatees. The life estate given to the widow was a legacy, a gift, under the will, the ■ same as the amounts given to charities and other legatees. Charities and other legatees than the widow were not given the whole $25,910, but only what was left after the widow’s life estate was taken therefrom. So that the figures should be stated as follows: Assuming the whole estate was $25,910, the life estate to the-widow was $10,000; the charities, subject to the life estate, were $9,210; the gifts to other legatees, subject to the life estate, were $6,700. These figures are not precise^ correct, but they are near enough to illustrate the condition of tilings, and they show clearly that the gifts to charities aggregated much less than one-half of the estate. .

The surrogate seems not to have considered the life estate given to the widow as a legacy. In .this we think he Was wrong. The life estate was a part'pf the' estate of the testator, and it proved to be a- very valuable part, amounting-before' her death to nearly $20,000. The gifts to charity and. the other legacies were not of the amounts stated .in figures, but these amounts less the life estate of the .widow therein. There were no children in this case, and the effect of the statute was to protect the widow alone. Suppose there had been no other legatees except the widow and the charitable institutions, and that the $11,000. given to other legatees had' been given to the Widow in addition to her life estate in the charitable gifts, could it then be claimed that more than one-lialf of the ¿State had been given to charities?' Her life estate in the gifts to charities would, have been worth by the Northampton

tables.....j................................... $5,771 66

Her other .legacies.......................... 11,000 00

While charities would have...........:, $14,910 00 ’

■Less value widow’s life estate............ 5,771 66

--:-- 9,138 34

Total......, .........:................. $25,910 00

• Certainly the gifts to charities would not then have been more than one-half, the estate. The whole question turns upon the nature of the gift to the widow of. the life estate. Was it' a legacy of a part of the estate, to be considered with the other non-charitable legacies, in arriving at the conclusion as to whether more than one-, half of the estate was given to charities ? Were the amounts given to charities and other legatees the amounts stated in the will in figures, or those amounts less the then present value of the widow’s life estate therein ? The view we have taken is supported not only by reason, but by authority also. (Hollis v. Drew Theological Seminary, 95 N. Y.167.) In that case it was held that where a will directed the executors to convert the bulk of the estate into money, to invest. the same, and to pay. the income of different portions thereof to certain persons named, during their lives, respectively, and upon their deaths gave the principal sums to certain scientific and educational corporations,' in determining whether the statutory limit had been exceeded, the value at the time of the testa: tor’s death of the portion of the estate so disposed of should be ascertained, and from this should be deducted the values of the life estates, computed according to the proper annuity tables, and the balance represented the value of the remainders given to the corporations, and this being less than one-half of the value of the estate at the time of the testator’s death, the" bequests xvere valid. The opinion iii that case in various terms illustrates this principle and clearly indicates that in arriving at the values of. the gifts to charities in a case like this, the present valué of life estates must be deducted, and only the balance, after such deduction is made, is the value of the gift to charities. Aiiy attempt to distinguish that case so as to avoid this. principle, as applicable to this case, we" think must fail. The case has never been questioned or overruled, and must be regarded as controlling here. If xve are right in-the viexvs herein expressed, no "figures can be derived from the findings made" by the surrogate that will make it appear that the gifts to charities xvere more than one-half of the testator’s estate as valued at liis death. Counsel will be able to agree upon the details of the modification of the decree necessary to carry these viexvs into effect.

All concurred.

Decree of Surrogate’s Court modified in accordance with opinion, and as so' modified affirmed, xvitli costs of this appeal to the Board " of Home Missions, payable out of the estate.  