Opinion
July Term, 1903.
William H. Harris, for the executors, appellants.
Harold D. Watson and Charles Martin Camp, for the infant defendants, appellants.
J. Harry Snook, for the respondent.
Inasmuch as the testator's daughters, Mary Eliza and Harriet Doremus, and his adopted daughter, Angeline Julia, are to receive only forty dollars a month out of the shares allotted to them under the will, it is undoubtedly true that if the income of a share amounted to more than forty dollars a month, the accumulation of surplus over and above that sum would be unlawful. In that event, however, such surplus would go not to the next of kin, as stated in the Special Term opinion on the authority of Hull v. Hull ( 24 N.Y. 647), but "to the persons presumptively entitled to the next eventual estate." (Real Property Law, § 53.) The case of Hull v. Hull ( supra), so far as that decision applies to the question under consideration, is overruled by Cook v. Lowry ( 95 N.Y. 103).
We are not able to concur in the conclusion reached by the learned judge in the court below to the effect that the whole scheme of the will with reference to these two daughters and the adopted daughter, so far as it cuts down the absolute bequest to each of them, must be permitted to fail. The doctrine of Benson v. Corbin ( 145 N.Y. 351), that an absolute devise will not be cut down or lessened by subsequent words which are of an ambiguous or doubtful meaning, does not apply to a case in which the limiting provision is clear and definite. ( Kurtz v. Wiechmann, 75 App. Div. 26. ) In the case at bar the learned trial judge thought that "if the cutting-down provisions of this will be reduced to that which is legal, it is at least doubtful that the testator had any such intention as such reduced provisions express." It seems to us tolerably clear, however, that no violence will be done to the intention of the testator if the provisions of the will limiting the income to be received by the two daughters and the adopted daughter to forty dollars a month shall be upheld to that extent, allowing the surplus income, if there is any accumulation, to go to the persons presumptively entitled to the next eventual estate. The language of the 16th article in reference to these shares shows clearly that the testator did not contemplate the possibility that the income from any one of these shares would exceed the monthly payment for which he provided; because in each case he directs what shall be done with the share in case it should not be exhausted at the decease of the first beneficiary. He, therefore, plainly had in mind the probability that the principal of each share would have to be drawn upon in order to yield forty dollars a month to the beneficiary.
We see no difficulty in regarding the bequest of each of these shares as in effect a bequest to pay an annuity to each of the beneficiaries, which is not invalidated by the fact that the payment of the annuity may not absorb the whole income. ( Cochrane v. Schell, 140 N.Y. 516.) There is nothing in the case to suggest that the apparent purpose of the testator is a mere cover for an unlawful accumulation; and that purpose, it seems to us, can only be carried out by permitting the monthly payments to be made and decreeing a distribution of the surplus income, if there shall be any, to the persons presumptively entitled to the next eventual estate.
The judgment should be reversed, and the appellants should have judgment construing the will in accordance with the views expressed in this opinion.
WOODWARD, HIRSCHBERG, JENKS and HOOKER, JJ., concurred.
Judgment reversed, with costs, and judgment directed for the appellants, in accordance with the opinion of BARTLETT, J.