
    Matter of the Judicial Settlement of the Account of Charles A. Runk, Executor of William G. Talman, Deceased.
    (Surrogate’s Court, Kings County,
    July, 1907.)
    Charities — Statutory restrictions as to gifts — Computation to determine excessiveness.
    Wills — Interpretation — Disposal of the entire estate — Disposal of lapsed or void devises or bequests — Void gifts to charities — When there is a deficiency of assets to pay valid legacies.
    Where a testator gave the residue of his estate to his wife for life, and provided for a conversion of tlie estate into cash at her death, making bequests to individuals, charitable institutions and corporations, upon the judicial settlement of the account of the executor, after the life tenant’s death, the value of the life estate -should be determined, for the purpose of ascertaining whether the gifts to charitable institutions exceeded the statutory limits, by the actual duration of the life estate and not upon the basis of the probabilities of its duration at the time of the testator’s 1 death.
    In such a case where there was an excess of assets over what could legally be given to the charitable legatees under chapter 360 of the Laws of 1860, but a deficiency of assets to pay all legacies in full, there is no intestacy as to such excess until all the valid legacies are paid.
    Interest should be allowed on all legacies from the death of the life tenant to the date of payment.
    Pkooeedihg upon the judicial settlement of the accounts of an executor-.
    Lord, Day & Lord (Darius E. Peck, of counsel), for executor.
    E. Percy Chittenden, for contestants.
    Harry W. Acton, for Edward Newell.
   Dike, Acting Surrogate.

This controversy arises as to the proper method to be pursued by the executor upon the final accounting herein, especially in computing the value of the life estate and with particular reference to the law of 1860 relating to charitable bequests.

William Gr. Taiman died in the county of Kings on November 9, 1900, leaving a last will and testament, which was duly admitted to probate; and letters testamentary thereunder were duly issued to Charles A. Kunk who duly qualified. The testator left him surviving his wife, Frederilca Taiman, to whom he devised and bequeathed, after some few legacies, all his estate during her natural life; and at. her death provided for a conversion of his entire estate into cash, making a large number of bequests to individual legatee's and charitable institutions and corporations.

The widow died in March, 1906. In accordance with the direction contained in the will, the executor sold the real estate, thus reducing all the estate to cash and now seeks to make his final accounting.

Objection is made to the account by the contestants on the ground that the law of 1860, chapter 360, has been violated by the testator in that more than one-half of his estate is given to charity. The account of the executor shows in his hands for distribution the sum of $66,644.83. There is a deficiency of assets to pay the legacies in full after making the separation of the estate under the plan adopted by the executor. The executor, therefore, has provided to abate the legacies and, under the method of the computation adopted by him, his account shows that there is an excess of assets over and above what he can legally give to charitable legatees and such excess amounts to $1,126.58. The contestants claim, under a different rule of computation, that the account should show a surplus undisposed of by the will, after setting apart one-half of the estate for the charitable legatees, of $3,145.48; and the contestants claim that this sum should go to the heirs-at-law, no deductions being allowed therefrom to meet the deficiency of assets or the charges of the estate.

There are two questions presented to this court. Was the act of 1860 violated? and, what was the value of the life estate at the death of the testator ?

In making the computations, the result of which is set forth in his account, the executor has followed the law as laid down in the case of Matter of Teed, 59 Hun, 63, and also 76 id. 567, which case was followed in Rich v. Tiffany, 2 App. Div. 25.

The contestants insist that the executor erred in so preparing his account and in fixing the value of the life estate, and hold that the case of Hollis v. Drew Theological Seminary, 95 N. Y. 166, should have been his guide. In my opinion the executor was correct. The Teed case and the Tiffany case were both decided after and with knowledge of the decision of the Court of Appeals in the Hollis case, supra, and they clearly set forth the method to be pursued in determining the question of the value of the life estate such as the one now under consideration. The objector, Hew ell, urges the case of McKeown v. Officer, 6 N. Y. Supp. 201, but this is clearly distinguished from the Teed and Tiffany cases; and it also appears that, in the McKeown case, the method of computation was not before the court. The Teed and Tiffany cases were both cases in accountings, while the Hollis case was for the construction of a will where the life estate was not terminated. It would be a platitude to assert that the law prefers, whenever possible, mathematical accuracy to approximation by problematic conclusions, however exact the rule, but based upon uncertain or speculative data. The Teed case reviews the Hollis case, and upon this very point the court says: “ That [the Hollis case] was a case dealing in uncertainties; in the case before us there is no uncertainty, because the proceeding is for the final distribution of an estate after the death of the annuitant, the length of whose life is accurately known.”

In the case at bar, all the events and facts that occurred during the existence of the life estate, actually necessary to the proper making up of a correct and detailed account, are known. It is not necessary to speculate, in the slightest degree; contingencies are eliminated and exactitude is secured. There is no intestacy as to this balance of $1,126.58 in the hands of the executor, after making his division, whereby the executor found the charitable legacies exceeded to that j extent the one-half allowed by law. Code Civ. Pro., § 2721. Until all the valid legacies are paid, there are no assets as to which the testator could be deemed to have died intestate. The rule is well settled that general legacies must be paid in full before residuary legatees are entitled to anything and the general legacy should prevail over an intestacy. Wet-more v. St. Luke’s Hospital, 56 Hun, 313; Gilbert v. Taylor, 16 id. 92.

Interest should be allowed on all legacies from the date of the death of testator’s widow to the date of payment.

Decreed accordingly.  