Misc.] Surrogate's Court, New York County, December, 1919. personal estate amounted to $1,184.80, his. debts amounted to $781.22 and the expenses of administration so far as shown by the account amounted to $217.20. As a result there will be no personal estate out of which to pay the legacies. Decedent also left four one-family houses, one on Mott avenue, which was devised to a daughter and her husband for life, with remainder over. The other three were on Walton avenue, and were not specifically devised. The principal legacies were as follows: $2,000 for the benefit of four grandchildren; $500 for the mother of the grandchildren; $1,000 for his daughter, in addition to $600 he regarded he was indebted to her for advances to him; $1,000 for an infant granddaughter, not yet named. As I said in Matter of Lummis, 101 Misc. Rep. 258, 269: "The real question in each case of construction seems to be whether or not the will, when construed in the light of extrinsic circumstances, evinces an intention that the legatees should be paid at all events. It is for that reason that throughout this case before me so much stress has been placed upon the amount of personalty owned by the testator at the time of his testament. Where the personalty is grossly out of proportion to the legacies the courts are inclined to impose a charge upon the land; otherwise the will would be a vain and useless act on the part of the testator." See McGoldrick v. Bodkin, 140 App. Div. 196. Under the circumstances in this case the testator must have known that the legacies to his children and grandchildren could not be paid without resort to the real estate, and I am of the opinion that that was his intention. See, also, Ely v. Megie, 219 N. Y. 112, and Carley v. Harper, Id. 295. Surrogate's Court, New York County, December, 1919. [Vol. 109. I decide, therefore, that the general legacies are a charge on the Walton avenue property and that the executor has power of sale over the same. Decreed accordingly. Matter of the Estate of JOHN H. ARMSTRONG, Deceased. (Surrogate's Court, New York County, December, 1919.) Trusts — direction to testamentary trustee to convert the residuary estate into money-wills accumulation accounting by trustees. A will directed the testamentary trustee to convert the residuary estate into money and to invest and hold the same in trust during the lifetime of testator's two daughters, who survived him, or the survivor of them, with direction to pay to each of them annually a certain sum out of the income. Upon the death of either, leaving descendants, a like sum was to be distributed among them during the lifetime of the surviving daughter and upon the death of both daughters the principal of the estate was to be distributed to their descendants per stirpes, but there was no direction as to the accumulation of income during the minority of any one. Upon an accounting by the trustee it appeared that both daughters are living, one having two children, the other none. Held, that as the surplus income could not be validly accumulated, it necessarily passed as undisposed of assets to the persons entitled to the next eventual estate, to wit, the testator's grandchildren. PROCEEDING upon an accounting by a trustee. Geller, Rolston & Horan, for executor and trustee. FOWLER, S. This is an accounting by the Farmers Loan and Trust Company, as trustee under the will of the above-named testator. A decree has been submitted and a memorandum is filed in opposition to the same. Misc.] Surrogate's Court, New York County, December, 1919. The testator left him surviving two daughters, and the will in substance provides as to the residue that the trustee convert the same into money and invest the same and hold the same in trust during the lifetime of his two daughters, Edith H. and Mabel H., or the survivor of them, and out of the said income pay to each the sum of $2,500 a year. Upon the death of either, leaving descendants, to distribute the $2,500 annually to those descendants during the lifetime of the surviving daughter. Upon the death of both of the daughters the trustee was to distribute the principal of the estate to the descendants of the said daughters per stirpes. Both daughters are living. One daughter has two children and the other daughter has none. An accumulation has resulted by reason of the payment of $2,500 a year to each daughter, the income being greater than that. The two grandchildren, the children of one daughter, are the persons presumptively entitled to the next eventual estate. Nothing is said as to what shall be done with this surplus income. It cannot validly be accumulated, for the reason that there is no direction to accumulate during the minority of any person. As it is undisposed of by the will, it must necessarily pass to the persons entitled to the next eventual estate, to wit, these two grandchildren. The trustee has drawn the decree accordingly. The surviving daughter, who has no issue, objects to the same, and submits that there should be an accumulation, and that the trustee should hold this money. That is obviously an incorrect view. There can be no valid accumulation, and the trustee has correctly drawn the decree. Costs taxed. The decree submitted on behalf of the accounting trustee appears to be correct, and the same has been signed. Decreed accordingly. Surrogate's Court, New York County, December, 1919. [Vol. 109. Matter of the Estate of DAVID LUBIN, Deceased. (Surrogate's Court, New York County, December, 1919.) Executors and administrators accounting - when application for an order directing payment to executors of amount of coupons collected on bonds on deposit to reduce penalty of bond denied Code Civ. Pro. § 2576. Where executors after having deposited a certain amount in Liberty bonds with a trust company in order to reduce their bond, receive an amount greatly in excess thereof, their application for an order under section 2576 of the Code of Civil Procedure directing the payment to them of the amount of coupons collected by the trust company on said Liberty bonds will be denied unless the executors file an additional bond. APPLICATION for an order directing payment of interest on bonds deposited with a trust company in order to reduce the bond of executors. James Garfield Moses, for executors. FOWLER, S. The executors herein, by order of this court, deposited $50,000 of Liberty bonds with the Guaranty Trust Company in order to reduce the penalty of the bond and thereafter filed a bond in the sum of $86,000. They have, in addition, according to their petition, received $101,150.96, of which they claim to have disbursed $45,870.45, and now have on hand $55,280.51. They ask for an order directing the payment to them by the Guaranty Trust Company of $837.50, the amount of coupons collected by the said trust company, without giving an additional bond. They claim that they are entitled to this order under Misc.] Surrogate's Court, New York County, December, 1919. the provisions of section 2576 of the Code of Civil Procedure. This section provides that no person other than the proper officer of the depository shall receive or collect any of the principal or interest of the securities deposited without the special order of the surrogate, and such order can only be made where an additional bond has been given or "upon proof that the estate or fund has been so reduced, by payments or otherwise, that the penalty of the bond originally given will be sufficient in amount to satisfy the provisions of law relating to the penalty thereof, if the security so withdrawn is also reckoned in the estate or fund." In this case, where there is such a great difference between the amount received by the executors and the amount of the bond, I think the proof required by this section should be made in an accounting proceeding where all parties interested will be before the court, as there is a possibility that on such accounting the executors may be surcharged with large amounts of the alleged disbursements, in which case the bond given by them would be inadequate to protect the estate. The application is, therefore, denied, unless the executors file an additional bond to cover the amount sought to be withdrawn. Decreed accordingly. |