
    In the Matter of the Accounts of the Executors and Trustees of Nicholas S. Vedder, Deceased.
    
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1891.)
    
    1. Legacy—Intebest—In loco pabentis.
    The will of a testator, after certain specific bequests, gave to his widow f or life the “income and profits” of the residue of his estate. Among other bequests he gave $5,000 to F. A. Mann and $3,000 to M. Mann. By a codicil he revoked these bequests and gave their sum to his adopted daughter Ida, to be paid her upon the death of the widow. The testator died in 1879. In 1875 he and his wife had formally adopted Ida, then four years old. She lived with him until his death and with his widow until 1890, when the widow died. Held, that as the whole income was given to-the widow, the legacy to Ida could not be deemed to have been given her for maintenance, and that she was not entitled to interest thereon during her minority.
    
      2. Executors and administrators—Profits—Premium on securities.
    The executors sold certain securities at an advance. Held, that the widow was not entitled to this premium as “ income and profits.”
    3. Same—Res adjudicata.
    The executors had, before the accounting in question, brought an action for the construction of the will, although there was nothing in the-will in the nature of a trust justifying such an action. To it the present appellants were parties. In it the court held that there was a conversion of the real into personal; that certain bequests to charities were void so far as they exceeded one-half of the testator's estate, and as to such excess the court held that it passed to the next of kin. The will gave the executors, a power of sale but did not direct its exercise. The executors sold and turned the real into personal. Upon an application by the appellants, claiming as heirs-at-law, for their share of the proceeds of the realty, Held, that so much of said “ excess” as was real property vested, subject to the life estate of the widow, at once in them as heirs-at-law, and that they were not concluded by the judgment which declared a conversion and that the excess went to the next of kin.
    Appeal from final decree made on settlement of the accounts of the executors and trustees of Nicholas S. Yedder, deceased.
    
      Seymour Van Santvoord, for app’lt, Ida A. Yedder; Sale & Bulkley (.Matthew Hale, of counsel), for app’lts, Brooks et al; McClellan & McClellan (Robert H. McClellan, of counsel), for app’lt,. Simon F. Mann, ex’r; Townsend, Roche & Nason (.Martin I Townsend, of counsel), for resp’t, Otis Gr. Clark, ex’r; King & King-(Edwin A. King, of counsel), for resp’t, Troy Orphan Asylum; John H Peck, for resp’ts, Trustees of Troy Annual Conference ;• Sanders & Myers (W.T.L. Sanders, of counsel), for resp’ts, John E. Gary et al.; Horatio C. Glen, for resp’ts, Catharine M. Phillipset al.
    
    
      
       Modifying 40 St. Rep., 119.
    
   Learned, P. J.

This matter comes here by appeal from an accounting before the surrogate. There are three separate appeals,. and five separate respondents.

Ida A Yedder appeals and claims interest on a legacy of $8,000 left to her.

Willard EL Brooks and others appeal. They claim certain interests in real estate as heirs at law, not next of kin, which estate has been sold.

Simon F. Mann, executor of the widow (who afterwards married one Hartshorn), and who was entitled to income, appeals, claiming the benefit of a certain increase in securities, and also as-to the application of the costs.

Some of the respondents oppose all of these appeals; others all but that of Willard EL Brooks and others.

First as to the appeal of Ida S. Yedder.

The deceased died in 1879. By his will, executed July 25, 1867, he gave his wife a life estate; and after her death certain legacies, among them: Fourth, to Fanny A. Mann, $5,000 ; Ninth,, to Martha Mann $3,000, with a contingent bequest to others.

By a codicil, executed June 5, 1875, he cancelled these two bequests, describing them, and then declared, “ and in place and stead thereof I give and bequeath the sum of eight thousand dollars, being the sum of said two former bequests, to my daughter Ida A. Yedder.”

On the 11th of September, 1875, the testator and his wife executed an indenture with the American Female Guardian Society, by virtue of which said Ida was apprenticed to them till she was eighteen. It was stated, however, therein that it was intended that said Ida should be taken as far as practicable into the family as an adopted child; she was then four years old. She was treated as an adopted child, during the life of the testator. From his death down to the death of his widow, June 8, 1890, Ida was educated and supported by the widow as a daughter, and in correspondence with the situation in life of the said widow.

It is not shown that Ida had any estate of her own except this legacy. •

She now claims that it is presumed that the legacy was given for maintenance, and therefore that it draws interest from testator’s death.

The question in such cases is what did the testator intend, ascertained by what he said and the surrounding circumstances. When courts say that the testator must have been presumed to mean what he did not say, they are groping in the dark and making, instead of construing, a will.

This testator need not have given any legacy to Ida. He was at liberty also to say when the legacy which he did give should be paid. He was not obliged to say that she should have the interest meantime. And he did not say so. On the contrary he gave all the income and profits of his estate to his widow (excepting such property as he had previously bequeathed to her absolutely). Therefore he could not have intended that any of the income should be paid to Ida for maintenance. For if interest on the legacy was to be paid to her for maintenance it would have to be paid every year. It would be absurd to say that for the purpose of said maintenance an accumulation of interest should be paid to Ida, after the death of the widow. But the interest on the legacy should not be paid to Ida every year, because all the interest on the whole estate was to be paid to the widow. It is practically the same as if the will had directed the executors to set apart $8,000; to pay the interest thereon to the widow during her life and at her death to pay the principal to Ida. It would hardly be .presumed under such a bequest that the testator intended to give to Ida that which he had expressly given to the widow, viz.: the interest. In the present case the testator gave to the widow for life all the income, including that arising from the $8,000 ultimately bequeathed to Ida. Thus he shut out the construction for which Ida contends.

Let us suppose that the testator had given the income of his whole estate to his widow for life and after her death the whole estate to Ida. According to the argument urged on us, as the testator stood in the place of a parent to Ida, the legacy was for maintenance. Therefore she must have the interest on the bequest from his death. Hence the widow would have no income whatever. That is but pressing the' rule contended for to its legitimate result. If Ida can deprive the widow of a part, why not of the whole income ? For it is the right to interest, not to principal, which is asserted.

Again, by the will two legacies were to be given to the testatator’s wife’s sisters, amounting to $8,000. Certainly these legacies did not carry interest, even by the most violent presumption which could be indulged in. And, therefore, unquestionably there was under the will no deduction to be made from the income of the widow to pay interest on these legacies. The codicil only cancels these legacies and gives “ the sum of said two former bequests ” to Ida. Hence she would not receive any more than those legacies; and clearly would not be entitled to interest

Again, although the codicil is dated a short time prior to the indenture of adoption, yet the codicil speaks of Ida as “my adopted daughter.” It is reasonable to suppose that the arrangement carried out by the indenture had already been made, at least verbally. And at any rate, long before the* will and codicil took effect, the indenture of nominal apprenticeship, but practical adoption, had been executed by the testator, and by his wife. He had a right then to expect that Ida, who must have been about eight at his death, would, at least till she was eighteen, the age-mentioned in the indenture, be cared for by the widow, who was herself a party to the indenture. Van Bramer v. Hoffman, 2 John. Cas., 200. Such expectations, if he had them, were fully realized. Ida must have been nineteen at the death of the widow. And up to that time she had been maintained and educated as a. daughter.

If a father gives his property to his widow for her life, with remainder to his children, it must be supposed that the children, would be supported by the widow. And that is the thought: which the testator must have had in this case.

These views leave us no reason to doubt what the testator in fact intended. It is' urged, however, on behalf of Ida, that an established rule of construction compels us to disregard his plain intention and to assume that he meant something else. As is said in Thorn v. Garner, 113 N. Y., at 202; 22 St. Rep., 692, there are “ certain facts which the courts have agreed are equivalent to an express direction to pay interest, because from such facts the courts will presume an. intention to have it paid.” In Bradner v. Faulkner, 12 N. Y., 472, it was said that, in the absence of express direction, the intent of the testator to authorize-the payment of interest should clearly appear.

The case of Cooke v. Meeker, 36 N. Y., 15, held that where the-testator gave a sum of money to a trustee in trust to invest in bond and mortgage and apply the income to the use of his granddaughter during her natural life, the granddaughter was entitled to the interest from the testator’s death. That is a case quite different from, the present. The legacy was expressly for use during life. The opinion contains numerous English cases on this'point. In Brown v. Knapp, 79 N. Y., 136, the will was as follows: “ I give, devise and bequeath to my grandson * * * the sum of $3,000, and direct my executor * * * to pay to-him the same when he shall attain the age of twenty-one years.” 'There was a gift over if he should die before twenty-one. The residue after legacies was given to his son. It was held that this legacy carried interest; the grandson being about seven at the testator’s death. Here there was a distinct setting apart of $8,000, no provision as to what should be done with the income, and the time of paying over was at maturity. It was inferred that the infant was to have the benefit during his minority.

In Keating v. Bruns, 3 Dem., 234, property was given to trustees to pay the income to an adopted daughter. It was held that she ought to have the income during the year succeeding the testator’s death. The will provided for the disposition of the principal fund after the death of the beneficiary. But it does not appear that the income was disposed of in any way except for the use of the beneficiary.

In Neder v. Zimmer, 6 Dem., 180, the gift was of money in a savings bank to three children, each to have his share when he arrived at twenty-one. It was held that the children were severally entitled to the interest.

How, without citing other cases, it will be seen that the principle seems to be applied when it is in harmony with, or not in violation of, the provisions of the will. The cases cited were unlike the present, and we think that the principle does not apply. Lyon v. Indust. Ass’n, 52 Hun, 359; 24 St. Rep., 443. The surrogate was right.

The next question we consider is that presented by the executor of the widow. The personal securities held by the executors of the testator were sold by them after the death of the widow. A premium of $8,659.83 was received therefor in excess of the premium at which securities had been charged in the previous decree of 1882. Her executor claims this as income to which the widow is entitled.

The will rather tautologically gives the wife “ the income of all my other estate, both real and personal,” and again in the same item, “the profits of all my other estate, both real and personal.” But there is no difference in the meaning of the words. In the next item he gives, after his wife’s death, “ the income and profits of $10,000 to Alida Yan Guysling, during her life, ” using thus the same language. Then he disposes of the whole of his estate. This use of the words “ income and profits,” is only due to the lawyer like fondness for using several words where one is sufficient. If the executors had not sold the real estate, and if the real estate had increased in value during the widow’s life, she would not have been entitled to the increase. So with personal property. This question is carefully discussed and fully settled in Matter of Gerrry, 103 N. Y., 445; 3 St. Rep., 688. We think that the use of the word “profits,” in these items of the will, has no additional meaning to the words construed in that case. The decision of the surrogate was correct.

The remaining question is that on the appeal of Willard K. Brooks and others, grandnephews and a grandniece of the testator. It has been held in an action in this court that the gifts, after the death of the widow, to the Troy Orphan Asylum and the Troy ■Conference under the statutes of the state were void so far as they ■exceed one-half the testator’s estate, and that as to such portion the deceased died intestate except as to the widow’s life estate. Laws 1860, chapter 360. Mo dispute is made as to the law in this respect. These appellants claim nothing as to the personal •estate. 2 R S., p. 96, § 75. But they claim as heirs at law their share of the real. 1 R. S., 752, §§ 8, 9.

The personal estate was enough to pay all the legacies including the half to which the aforesaid corporations are entitled.

There was in the will an authority, but not a direction, to sell real estate. Mor is the purpose of such authority expressed in the will. It could only be for the purposes of the will. Wood v. Cone, 7 Paige, 471. There was no purpose of the will for which ■such sale was needed. There was, therefore, no conversion of the real into personal property. A discretionary power produces no such effect. White v. Howard, 46 N. Y., 162: Chamberlain v. Chamberlain, 43 id., 431; Chamberlain v. Taylor, 105 id., 186; 7 St. Rep., 517.

The real estate (subject to the life interest therein of the widow), so far as it was undisposed of, vested at once in the heirs .at law. The gift of the income to the widow gave her a life ■estate in the land. 1 R. S., m. p. 727, § 47. She was not the mere beneficiary of a trust in respect to the land, but had the estate. And the undisposed-of remainder vested in the heirs at law. It may be doubted whether the power of sale existed in respect to this land as to which the testator made no devise. 1 R. S., m. p. 734, § 102; 730, § 67; Chamberlain v. Taylor, ut supra. It is not necessary to decide that question here; since .these heirs at law, by coming in and claiming a share of the avails, ■practically ratify the sale, of the executors. But we are satisfied that these heirs are entitled to their share of the avails unless they are deprived thereof by a previous decision of the court. An action was heretofore brought by the executors for the construction of the will To that action these heirs at law were parties. In the judgment entered in that action, June 11, 1880, it was, among other things, adjudged that the will provided for the •conversion of the real into personal property, and that the whole ■estate must be considered and treated as personal property. The next of kin of the testator now claim that that judgment establishes their right to this undisposed-of share of the estate and estops these heirs from their legal rights.

Mow that action was solely for the instruction and aid of theexecutors. So far as this share of the real estate was concerned, they had no duties under the will, for it was not disposed of thereby. We have seen that it is even doubtful whether this power of sale extended so far.

In Rathbone v. Hooney, 58 N. Y., 463, there had been a foreclosure to which one Mrs. Brown was a party defendant. Mrs. Brown held an interest in the estate as trustee for Maria Rathbone’s life, and also for her in her own right as remainderman, and she had executed a mortgage. Her own estate she could mortgage; the trust estate she could not. It was held that,, though the judgment in foreclosure cut off her own estate, it did. not cut off the trust estate. The court said that “that judgment, was final for its own proper purpose and object, and no further ; ” and that Mrs. Brown “ was not bound to set up her claim as trustee when made a party to the foreclosure in the absence of any averment in the complaint in respect to the interest or claim that it was subject to the mortgage.”

The proper object of such a suit has been passed upon, Bailey v. Briggs, 56 N. Y., 407; Dill v. Wisner, 88 id., 153, and lately by this general term, in Avery v. Mabey, 42 St. Rep., 74. It can be maintained when the executors have some duty in the way of a trust. As to the real estate now in question the executor had none.

And it will be seen that the judgment is general in its terms,, stating that the “ excess ” over one-half of the gross amount of the estate goes to the next of kin. It is not questioned that this-is correct as to the personal property. And nothing appears in. that judgment as to the amount of either real or personal.

There is no doubt as to the rule of res adjudicaia. The only-question is whether, in such an action as that above mentioned, brought for the construction of the will in respect to the duties-of the executors, these heirs at law are bound by the statement that the “ excess ” goes to the next of kin. On the whole consideration of the question we are of opinion that they are not.

Some question is made as to the discretion of the surrogate in-charging executors’ fees and expenses of accounting. He directed' that these items should not be charged against the portion of the estate in which the Troy Orphan Asylum and the Troy Conference were entitled to share, but against that portion in which-the widow and next of kin are entitled to share. As we have taken the view that the avails of the real estate go to the next of kin, there must be a modification of the surrogate’s decree after an ascertainment by him of the amount of those avails. This may-render a new adjustment of costs necessary, since the heirs have-not been heard upon that point. We think it best, therefore, to-say nothing upon the question of costs. The decree must be affirmed, except so far as it adjudged that the avails of .the real estate be distributed among the next of kin, in which respect it must be reversed and the matter sent back to the surrogate to-ascertain the amount of such avails and to provide for the payment thereof among the heirs. The question of the charging the costs and executors’ fees will, of course, be open to such readj ustment as the surrogate may make in view of these new interests.

The appellants, Brooks and others, will be entitled to costs of this appeal against the next of kin and the executor of the-widow.

The respondents, the Troy Orphan Asylum, the Troy Conference and executors, will be entitled to costs of this appeal against Ida A. Tedder.

The respondent, Clark, executor, will be entitled to costs of “this appeal out of the estate.

This order may be settled before Mayham, J.

Mayham and Putnam, JJ., concur.  