HOYT V. JACKSON.

One of those petitioners is the widow of the decedent, and the other is his only child. If he had died admittedly intestate, they would have been entitled, under the statutes of descent and distribution, to his entire estate, and they will be discovered to be so entitled if the probate of this will shall hereafter be revoked. The trusts, which the will directs to be set up for their benefit, have priority over all other bequests save one for $50,000. And while there is a wide variance between the parties hereto, as to the probable net value of the estate above the debts, it is beyond dispute that it exceeds, by several millions of dollars, the amounts directed by the will to be set apart as trust funds for the benefit of the petitioners, and to be so set apart in priority over all other bequests except the $50,000 legacy.

Besides, the will directs that "the choicest investments and those having the longest to run" shall be selected for the benefit of Mrs. Hoyt, and that the executors shall apply, in the most bounteous and liberal manner, the proceeds of the fund created for the benefit of decedent's daughter.

It appears from the affidavits of the petitioners that, at the time of the decedent's death, their mode of life and standard of expenditure were such as were appropriate to his wealth and his social position.

They are now maintaining, and seek to continue the maintenance of, separate establishments-a purpose which, if it suits their pleasure, is not unreasonable, in view of all the circumstances, and especially in view of the large interest which they must indisputably be found to have in this estate, whether the probate of the will shall ultimately be revoked, or shall remain undisturbed.

HOYT V. JACKSON.

Because of these considerations, and because, since the decedent's death, the petitioners have had no other source of income than their interest in his estate has afforded them, I am disposed, in this case, to give to section 2719 as broad a construction as its language will fairly permit.

Indeed, I understand from the answer and affidavits of the executors, and from the intimations of their counsel upon the second argument of this motion, that they do not seriously object to the entry of an order directing the payment, to each of the petitioners, of any sum which the court may think fit to name, provided that such sum is not in excess of the amount of income earned by such share of decedent's estate as the will sets apart for their benefit.

A careful review of all the evidence for the sake of determining the amount of such income discloses no data from which it can be even approximately ascertained.

The respondents say that the income of the entire estate received by them has amounted to less than $25,000, and that, by reason of advancements to the petitioners, that amount has been reduced to less than $19,000. It is not apparent, however, but that other income has been earned which the executors have hitherto failed to collect. Then, too, it seems that about one third of the estate consisted of property in the state of Michigan, and that the will appoints an executor in that state who is in some sense subordinate to the New York executors, and is required to transfer to them rents, dividends, proceeds of sales, etc., which from time to time may come to his hands.

For aught that the evidence discloses, there may be, as

HOYT V. JACKSON.

petitioners' counsel suggests, considerable sums of money in the possession of the Michigan executor which are subject to the demand and disposition of the respondents.

One of the petitioners asserts, upon information and belief, that a large part of the property whereof decedent died possessed consists of bonds of the United States Government, which are still in the hands of the executors; the other makes a somewhat similar allegation. But neither of them declares what portion of the estate is thus invested, or what issues of Government bonds are thus held by the executors, or what rate of interest they are yielding.

The executors declare that the estate is of such a character that, whether the income from certain of its assets shall be much or little will depend upon the outcome of certain enterprises, in respect to which they are vested by the will with discretionary powers, which may necessitate the use of very large sums of money, amounting to hundreds of thousands of dollars. The trusts for neither of the petitioners have as yet been set up, and it is difficult, and perhaps impossible, to determine with accuracy the maximum sum which the executors can now pay, without prejudice to the rights of other beneficiaries.

The legal rate of interest does not seem to furnish the test, because the will does not bequeath to the petitioners definite sums of money which, either expressly or by intendment, are made payable at the decedent's death. In that event, the beneficiaries would, of course, be entitled to six per cent. upon their legacy.

Here, on the contrary, the will directs the establishment of trust funds, of $1,250,000 each, to be created out

MATTER OF WOOD.

of the investments of the estate, and the income of those funds, which may be greater than six per cent. and may be less, cannot be ascertained without inquiring into the character and extent of this estate, and the nature of its various investments and the amount of interest, dividends and profits which those investments have realized. It will become necessary, therefore, before the final disposition of this motion, to submit to a reference the questions above suggested.

An order may be entered, on two days' notice, directing such reference, and providing also that the executors pay to each of the petitioners, upon their severally giving bonds, as required by section 2719, the sum of $5,000, to be charged against them, respectively, as a portion of whatever sum may be hereafter discovered to be properly awardable on these applications.

Ordered accordingly.

NEW YORK COUNTY.-HON. D. G. ROLLINS, SURROGATE.-February, 1883.

MATTER OF WOOD.

In the matter of the estate of FERNANDO WOOD, deceased.

Testator, by the first clause of his will, gave to his son, as trustee, $5,000, to be paid to him within 30 days after testator's death, and to be applied in defraying the current expenses of the household and family, including the personal expenses of the widow. By the second clause, he gave one fourth of the residue to a trustee, to collect the income and apply the same to the use of his widow for life, with remainder over;

MATTER OF WOOD.

and directed that, until his executors ascertained and paid over said fourth of the residue to the trustee, they should pay over and advance to my said wife a sufficient sum per annum to make up to her an annual income of $3,000, such advances to be charged against and deducted from the shore to be held in trust for her." These provisions were expressed to be in lieu of dower. She had a separate estate, yielding some income. The sum of $3,000 was ample for her annual maintenance.

Held, that the testator did not intend that, in making up this annual income, there should be taken into account any income which might come to the widow apart from that furnished by the will.

Testator, by his will, gave a house and lot and the sum of four thousand dol lars, to a trustee, to receive the income and profits, and, after paying thereout the annual charges against the premises (specifying them), to apply the remainder to the use of his sister for life, with remainder over, with the privilege to her to actually occupy the said premises, free of charge. The cestui que trust was over 60 years of age, without independent means, for whom testator had for years provided, and who in fact resided on the premises in question, testator having purchased the same as a home for her, on her selection. It appeared that the income of $4,000 was about sufficient to keep down the annual charges on these premises.

Held, that interest began to run on the $4,000 from testator's death.

THIS was a judicial settlement of the account of Joseph L. R. Wood and Fernando Wood, as executors of decedent's will. Two questions were raised by the account, viz.:

1st. Whether the widow of the testator was entitled to an income out of the personalty of the estate, of $3,000 a year from testator's death, and until the ascertainment and payment over of one fourth of the residuary estate to the trustee named in the will.

2nd. Whether the executors should pay to the trustee of Albinia Baldwin interest on $4,000 from the date of tes tator's death. Portions of the will relevant to these inquiries read as follows:

"First. I give and bequeath unto my son Joseph L. R. Wood, the sum of five thousand dollars, to be paid to