Citations
- 141 A.D. 43
Full opinion text
Burr, J.:
. ■ The will. of- William Howard, as modified by a codicil thereito, contained theHollpwing provisions“ Eirst. After the payment ---* ■ "The gift--Of’the' income-is'- independent’of the gift-of the principal ;i and -thé right-to1 the incómé¡does 'not dépeh-d upon the investment,; but was-created -and* exists regardless of -it. -The direction to the exécutor; witbréspéct-tó" the-investment of-the futid-, lias reference-to tli e ad minis tfaf ion of the; trust, -and -cannot-be-available- to - defeat the-legatee’s- title- tbiñcoiné: aceruitig-pre-viously to the time when- the investment is required ’to ■ be made/: * *■ ■ There-is no difference in-principle’between'the: gift-of ati> -annuity - and' the gift-Of income,- with- respect- to .the--time'’ when each begins* to accrue; and it- is--conceded -that*-an- 'annuity-is’ • payable from tlié- death of- the- testator,-■ unless a--different -time"is; prescribed in the will.” In Matter of Slocum (supra) the court-say \■ Hotliitig is clearer- than • that -tlié. testator■ has-.'not- -in- ’■ terms:' lii-hitfed the life-estate-to-the fund- to -be -created- by •the--eoh-version,? and-investment.- -What he giv-esds Hhe income.-of- t-wy" said estate;’-; •not the-income-arising from the' investments,: -nor even- ■ the' income-collected: after--the -conversion- -arid’ -investment.” So- in this--case;! while- the1 d-irectioh is to-invest and reinvest - the sum of $32,000;- , the--express---direction is not- to-pay her -the"---income -received’ . after’ sricli -investment-1 is made, -hut - “ to pay to hei-The income-received.-.from -saidysu-m--of Tbirty'Two>■tliohsand'dollars -for.and dur-'ing her -natural life.”- ’-The testator kriew that' at; the time’ cf' his-death-his-personakestatep-ineluding-the $3-2;000- referred-To -in- this * clause- ’of- -his Wi-11, - was- -so in vested as - -t o-'1 be- > p rod-u c t-i've < of - income] - In affirming5 tlié decision of this, court in the Slocum Case (169 N. Y. 153, 158) the court ’ say -: The- testator-does- not distinguish- between: the--income to-be -derived'-from- liisy-investment -in- his' firm' arid T-lie income'to- be-deiivedfrorii-the in vestments*-to- -be made by-his execu-;: tore,--although-, 'as-wé have- seenphe- inust have had- both- in- min’d.; The word income ’"is used-ás á" whole,: and -of course- embraces--all", its parts-.-- ‘ Hé -fixes no time- anti implies none, except' as" hé- ¡léts the -law- speak-.for- him,'when this ineome’shall-begin’' to-accrue, and-thus creates no interval, between his death and some future period in which it may not accrue, 6r, if accruing, shall not be disposed of as such.” So here it may be said that the testator draws no-distinction between the income derived "from his own investment of $32,000 and that which might subsequently be made by his executors and trustees.
I think that the decision of the learned surrogate was right, and that so much of the decree as is appealed from should be affirmed-, with costs.
Hirsohberg, P. J., Woodward, Rich áifd Carr, JJ., concurred.
Decree of the Surrogate’s Court of Kings county, in so far as appealed from,, affirmed, with costs,