In re Morris , 10 N.Y. St. Rep. 701 ( 1887 )

The Surrogate.

The third article of this testator’s will is in substance as follows : I give to my executors $45,000, in trust,- to invest the same, and keep the same invested, and to apply the income thereof to the use of my wife for her natural life; and, after her death, I give the sum of $35,000, part of said $45,000, to my son John H. Morris, and I authorize and direct my executors to collect and apply the net income of $10,000, the balance of said $45,000, to the use of my sister-in-law, Elisa P. Dykman, for her life; and, after her death, I give the said $10,000 to my said son John H. Morris.

The fourth article bequeaths a legacy of $1,000 to the testator’s widow and divers other pecuniary legacies to persons therein specified.

Article nine declares that “ the above bequests for the benefit of my wife are not to be diminished in case my estate shall not be sufficient for all the devises and bequests of this will, but are first to be provided for, and are upon condition that she accept the same in lieu of all dower and right of dower and other claims upon my estate.”

•It is unnecessary to specify in detail the remaining provisions of the testator’s will. By the instrument, as a whole, he undertook to dispose of $86,000. Of this sum he directed that the executor should hold in trust for the widow, as above stated, the sum of $45,000; that he should hold the further sum of $18,000 in trust for other beneficiaries, and should pay the sum of $23,000 to legatees.

It appears, by a statement of facts to which all persons interested in the present accounting proceeding have agreed, that the assets which have come to the hands of the executor have never been sufficient even to satisfy the trust provision for the benefit of the testator’s widow. She died in May last, having been in receipt since' her husband’s death of the net income of his entire estate. The executor now has in his hands about $28,000 ready for distribution. What must he do with it to satisfy the provisions of the will ?

That the testator, by the ninth article of that instrument, gave a preference to his widow over all other beneficiaries to the extent of the income of $45,000, or of the whole estate if it should not be of greater value than that amount, is admitted on all hands.

I do not find any expression, implication or suggestion of an intention on his part, that as regards the disposition, after the widow’s death, of the fund which should have been theretofore yielding income for her benefit, any person named in the will as a beneficiary should have priority over any other.

I, therefore, hold that all the legacies abate pro rata, with the single exception of the $1,000 legacy to the widow. Her representative is entitled to receive the same in full.

As to commissions, I understand that the accounting party has already received such sums as are grant-able to him by law in his capacity as executor. As the trust for the' widow’s benefit is terminated, he may properly retain full commissions as trustee upon such portion of the $28,000 as is now released for distribution to legatees, except the $1,000 payable to the widow’s representative. He is entitled, I think, to one half commissions for receiving such portion of said $28,000 as, in accordance with this decision, must be retained in his hands upon the trusts that still remain unexecuted.