Citations
- 125 A.D. 710
Full opinion text
Gaynor, J.:
The will of the testator left all of his personal estate, excepting some specific bequests, to his executors, and contained an imperative power to them to sell his real estate at the death of his widow, or sooner upon her consent, and put the proceeds,into a common fund with the personalty, and also a direction to put all income into such fund,' and provided that they should dispose of the said fund as follows:
1. Fay to the Avidow for her life $1,200 a year, and also the taxes and repairs on her oavii residence, and also on the country residence of the deceased left to her for life by the will.
2. Fay to his sister $600 a year for the life of the widow, and if she survive the AvidoAV, then a present lump sum which shall be the equivalent of $600 a year for the rest of her life.
3. Pay to his niece $400 a year for her life, and its equivalent in gross in the same way on the death of the AvidoAV.
4. On the death of the widoAv to devote $35,000 to the erection of a statue of General the Marquis De La Fayette in Prospect Park in the City of Brooklyn.
5. To divide the remainder among five charitable institutions which are named, share and share alike.
The will was made in 1895 and the testator died in the same year. The said sister is now dead. The widow and niece are alive, and the latter is the sole heir and next of kin of the testator.
a. The testator left 160 shares of the par value of $100 each in an insurance company whose capital stock was $100,000. At his death the company had a surplus of earnings of $190,000,- which continued to increase until it was more than $250,000 in 1902. The company then increased its capital stock to $200,000. It gave its stockholders the option to purchase the said new shares at par, viz., $100 a share, each the same number of shares as he already held, before offering them to outsiders. For the express purpose of enabling its stockholders to take the same, it declared a dividend of 100 per cent, on its old stock out of such surplus. The executors used such dividend, viz., $16,000, to pay for their allotment of the new stock, viz., 160 shares. Whether this new stock is to be treated as income or as principal of the estate was much discussed below and here, for if it be the former, then there is an excess of income over and above the annual payments directed by the will, and as an accumulation of it would be unlaivfnl under the statute, the question is presented as to who is entitled to it. The learned surrogate held that it was income and directed it to be distributed to the widow and the niece, on the ground that there is an intestacy in respect of it. But that result does not follow. It goes to those entitled under the will to the next eventual estate, i.