#### Matter of the Judicial Settlement of the Accounts of Horace G. Young, as Trustee under the Will of Thomas Cornell, Deceased.

(Surrogate’s Court, Ulster County,

March, 1898.)

Apportionment, under Code of Civil Procedure, section 2720, of the income of a trust, accruing during a part of a year.

Rule for apportioning, under section 2720 of the Code of Civil Procedure, upon the death of the! widow of a testator, the income of an estate, for a part of a year, under a will which directs that, during “ two lives," his widow shall receive 90 per cent, of the corpus and his estate 10 per cent.; and that, after her death, his .two ¡daughters shall each receive 45 per cent, of the ¡income during “ two lives.”

Apportionment of taxes paid for the whole year.

Judicial settlement of the accounts of a trustee.

H. C. Soop, for executor and trustee.

A. T. Clearwater, for Mary Augusta Coykendall and others, and Samuel D. Coykendall, as general and special guardian of Robert B. Coykendall and Frank Coykendall, infants.

Cardozo Brothers, for Nellie L. Carpenter and Catharine Ann Cornell; also, for Nellie L. Carpenter, as executrix, etc.

Betts, S.

On February 23, 1897, the trustee herein filed his verified petition asking for a judicial settlement of his accounts, and upon the same day a verified account was file,d'in this court, bringing the account as such trustee down to February 1, 1897.

Objections to various items of the account were filed on behalf of Catharine Ann Cornell, who at that time was entitled to! 90 per cent, of the net income of said estate. Hearings were had, and adjournments taken, until May 15, 1897, when the said Catharine Ann Cornell died in this county, leaving a last will and testament which was subsequently admitted to probate, and appointing Nellie L. Carpenter, her daughter, as the executrix thereof,, Mrs. Carpenter duly qualified, and letters testamentary were issued to her, and she came in and was made a party to these proceedings as such executrix. On June 1, 1897, a supplemental, verified account of the trustee, showing the receipts and disbursements of the estate, *224up to and including the 15th day of May, 1897, was filed in this court. Objections' to that account were filed by Nellie L. Carpenter, both individually and as executrix of the will of Catharine Ann Cornell, deceased. Various large payments of income being due the estate in July and August, a second supplemental account was filed by the trustee on the 1st day of September, 1897, which brought the accounts from and including the 16th of May, 1897, down to and including the 31st day of August, 1897. To- this supplemental account, various objections were also filed by Mrs. Carpenter, individually, and as such executrix.

Hearings have been had from time to time, and adjustments and corrections of the various items in these accounts have been made by the trastee, so that now .there are only tyro principal items of objections for me to pass upon, the others having, from time to time, by suggestion of the court, or agreement of counsel and trustee, been disposed of, with the'exception of various objections in ¡which this court has been asked to change its former rulings and which are hereinafter more fully referred to.

The will of Thomas Cornell, so far as is necessary to be quoted, for a proper disposition of the questions at issue here, after devising the estate to trustees therein named, during the continuance of two lives in being, provides as follows:

“ 4th. ■ To pay over unto my said beloved wife Catharine Arm for her own sole use, benefit and disposition, during the period of said *‘*two lives if' she shall live so long, or if not, during her natural life, ninety (90$) per ¡cent, of the net income of my said estate in lieu of dower or of any rights she may have in any or to any part of my estate except as -herein provided, the remaining ten (10$) per cent, to revert to my estate.

“ 5th. .If my said wife should not survive said *‘*two lives,’ but should die before either or the last of said ‘two' lives,’ then at her death, to pay oyer unto my two daughters Mary Augusta and Nellie L. to each one-half of the income heretofore directed to be paid to my said wife, to-wdt: forty-five (45$) per cent, of the net income -of my said estate, to each of my said daughters, share and share alike, during the period, or the remainder of the period, of said ‘two lives.’” /

The principal item in dispute between Mrs. Carpenter as executrix of Catharine Ann Cornell and the remaindermen and Mrs. Coykendall is as to what part, if any, of the income of the estate up to May 15, 1897, [the date of Mrs. Cornell’s death, earned, *225but not due nor collected by the trustee at that time, should be paid to Mrs. Carpenter as executrix of Catharine Ann Cornell’s will.

This contention must now be settled by the provisions of section 2720 of the Code of Civil Procedure. That section is as follows:

*“*All rents reserved on any lease made after June 7, 1875, and all annuities, dividends, and other payments of every description made payable or becoming due at fixed periods under any instrument executed after such date, or, being a last will and testament that takes effect after such date, shall be apportioned so that on the death of any person interested in such rents, annuities, dividends or other such payments, or in the estate or fund from, or in respect to which the same issues or is derived, or on the determination by any other means of the interest of any such person, he, or his executors, administrators or assigns shall be entitled to a proportion of such rents, annuities, dividends and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof, as the ease may be, including the day of the death of such person or of the determination of his or her interest, .after making allowance and deductions on account of charges on such rents, annuities, dividends, and other payments. Every such person or his executors, administrators or assigns, shall have the same remedies at law and in equity for recovering such apportioned parts of such rents, annuities, dividends and other payments, when the entire amount of which such apportioned parts form part, become due and payable and not before, as ha or they would have had for recovering and obtaining such entire rents, annuities, dividends and other payments, if entitled thereto ; but the persons liable to pay rents reserved by any lease or demise, "or the real property comprised therein shall hot be resorted to, for such apportioned parts, but the entire rents of which such apportioned parts form part, must ba collected and recovered by the person or persons who, but for this section, or chapter 542 of the Laws of 1875, would have been entitled to| the entire rents; and such portions shall be recoverable from such person or persons by the parties entitled to the same under this section. This section shall not "apply to any case in which it shall he expressly stipulated that no apportionment be made, or to any sums made payable in policies of insurance of any description.” ■ ,

*226It is contended by Mrs. Carpenter, as executrix, that all income except dividends on stock owned by the estate, earned, but not due nor collected prior to and including'May 15, 1897, should be paid to her by the trustee without any deductions therefrom. It is,’ on the other hand, contended by Mrs. Cóykendall and her children, that the sum due the estate of Mrs. .Cornell,, if any, could only be ascertained at the close of the fiscal year, and that the portion of income earned, but not collected, should bear its just proportion of the expenses of the estate.

It was shown -upon the hearing, that the last payment of inter- ' est tó the trustee which includéd any. part of the interest earned prior to the death of Mrs. Cornell, was due and payable March 1, 1898, and the.one prior to .that was due and payable February 20, 1898. I am informed that the entire amount of payments in which Mrs. Cornells estate, cotdd be interested have been collected by the trustee. -

. We have seen that the statute provides that *“*Every such person of his executors, administrators or assigns shall have the same remedies' at law and in equity for recovering such apportioned parts \of such rents,, annuities, dividends and other payments, when the entire amount of which such apportioned parts form part, become due and payable and not before, as he or they would have had * ■'* *. if ■ entitled thereto.” That time would seem now to have arrived, since the last payment in which Mrs. Cornell’s estate is interested, has been made. . Mo good purpose • could be served by requiring the executrix of Mrs. Cornell’s estate to wait any greater period,, and it is in every way desirable that the trustee should understand the proper method te make up his. accounts, and to whom the income from said estate should be payable.

The ordinary expenses of the estate, for.repairs, clerk hire, etc., are about the same amount from month to month. It so happens, however, that since the death of Mrs. Cornell, the taxes for an entire year have been paid upon the estate. It may be' that some trifling, amount for school taxes will have to be paid before May 1-5, 1898, .but that is unlikely, and if so, the amount .would be trivial. _

■ .It would be manifestly improper in making' an adjustment -between the conflicting rights of the estate of Mrs. Cornell, and Mrs. 'Carpenter and Mrs. Cóykendall, the .present life, tenants, to place the entire amount of those takes as part of the expenses of the ten months, when they were in -reality for the protection of *227the estate during an. entire year. Indeed, the point is made by Mrs. Carpenter as the executrix, that the portion to which her mother’s estate is entitled should not bear any part of the taxes. This cannot be maintained. Had Mrs. Cornell lived, the income earned by the estate would first have paid all the expenses of the estate including all taxes, and 90 per cent, of the remainder would have been paid heir under the provisions of the will. No- reason has been shown for-any greater exemption to her estate than she would have received.if living. The taxes paid by the estate are so adjusted for past expenses and anticipated payments, that any adjustment is difficult. Probably the principal fixed items are for interest on county and municipal indebtedness, which had been running from March 1, 1897, to the date of Mrs. Cornell’s death, and have of course been accumulating ever since. The amount due Mrs. Carpenter as executrix of Mrs. Cornell’s will, should at least bear its proportion, with the other income of. the estate. Taxes must be paid, and property receiving the benefit therefrom, must bear its due proportion.

Since the entire amount of income in which Mrs., Cornell’s estate is interested, has now been received by the trustee, it is proper that he should file his account so that the parties interested and the court, may know the present condition of the account, and be able to make an intelligent division of tire income. The trustee may file a supplemental account to and including the 15th day of March, 1898. That makes ten-twelfths of a year from May 15, 189Y, the date of Mrs. Cornell’s death. An equitable division may then be had of the income between the executrix of Mrs. Cornell’s will, and Mrs. Carpenter and Mrs. Coykendall, the present life tenants, as follows:

From the gross income from May 15, 1897, to March 15, 1898, ten months, deduct all expenses properly chargeable to income except the taxes. As we have shown that the taxes for the entire year have been paid, ten-twelfths of the total amount of taxes paid upon the entire estate may also be deducted. The remainder, after deducting all said expenses, trustee’s commissions, and ten-twelfths of the taxes from the gross income, will be the net- income for those ten months. Ten per cent, of that net income should be set aside to revert to the estate of Thomas Cornell. Then compute the amount of income (not including any dividends on stocks owned by the estate) which was earned, but not collected by the trustee on May 15, 1897, less 10 per cent., thereof. ■ Deduct from *228that such proportion' for the expenses of the estate ■ for the ten months less two-twelfths of taxes paid, as this income bears to the remaining income for the ten months, less 10 per cent, thereof, and the remainder thus, found- will be the income due Mrs. Cornell’s estate, and shall be at once paid to .Nellie L. Carpenter, executrix of Catharine • Ann. Cornell’s will, in ..full for her interest in the estate of-Thomas Cornell. Such part of the remainder of the income after deducting two-twelfths of the taxes as the trustee' may deem prudent shall be equally divided -between Mrs. Coykendall. and Mrs. Carpenter.'

There seems to be no reported cáse construing section 2720 of the Code of Civil Procedure in which the facts are- similar to- the one at bar. I have given the subject careful examination, and the conclusions here arrived- -at; are in accordance with the plain reading of the section. Some of its provisions are opposed to the principles of the common law. 2 Perry on Trusts, § 556; Clapp v. Astor, 2 Edwards Ch., 379; Kearney v. Cruikshank, 117 N. Y. 95. It seems framed to fully meet a case similar to the one before me. Its provisions are clear, and I have construed it accordingly.

Some of the income of this estate is also apportionable under the provisions of the common law, aside from section 2720, such as interest on bonds and mortgages, and other securities. U. S. Trust Co. v. Tobias, 21 Abb. N. C. 393.

Various objections have been made to this account, which were fully passed upon by me jat the last hearing in this estate, and reported in 17 Misc. Rep. 680, and subsequently affirmed by the Appellate Division, 15 App. Div. 285; 44 N. Y. Supp. 585, with the exception of extra compensation to the trustee, which was reversed by a divided court.

- I see no reason for changing my former ruling. Both sides have appealed to the Court of Appeals, and the matter is there for determination. Evidence has been introduced showing the situation more in detail than was done on a former hearing, but no new facts have' been adduced, nor new reasons given for any different determination by this court.

I adhere to my former decision, and a decree may be entered as to those disputed questions, in accordance therewith. -

An objection is also made on behalf of Mrs. Carpenter that more than 10 per . cent. , of the net income of the estate has been passed to the crédit of the principal estáte by the trustee: That claim does *229not seem to be well founded. Computations of an expert are submitted to sustain this contention, but as not unfrequently happens, the expert bases his estimates on incorrect data, which of course makes his results differ from the trustee’s, and from the truth. The expert accountant apparently bases his contention on paragraph VI, of the decree of September 8, 1896, in this estate, which is as follows:

' *“*The testator in the fourth subdivision of bis will having directed that 10 per cent, of the net income of his estate should revert to the principal estate, it is further ordered, adjudged and decreed, that 10 per cent, of thei net income of the estate from the 30th day of June, 1894, is the sum of $4,500, and that that sum revert to and become the property of the principal estate.” But paragraph VI should be read in connection with paragraph XII, which is as follows:

“It is further ordered, adjudged and decreed: That out of the said moneys so belonging to the income account of the said estate, the said trustee do pay to the principal estate, and credit to the principal estate account, the said sum of $4,500, the 10 per cent, of the net income of the said estate from the 30th day of June, 1894, as stated in the sixth subdivision or paragraph of this decree, and that he do further pay to and credit the said principal estate account with the further sum of 10 per cent, of the net income of the said estate, from the time to which 10 per cent, of the net income of said estate amounted to the said sum of $4,500; such last-mentioned payment to be made by the said trustee in the due administration of the said estate.” The facts are, that, during the time covered by that decree $45,000 had been paid to Mrs. Cornell, and as the will directs that 90 per cent, of the income shall be paid her, and the remaining 10 per cent, revert to the estate, it was provided by that decree, that the trustee should pay $4,500 to the principal estate, and as some expenses charged to income by the trustee were directed to be charged to the principal estate by 'the court, it left some additional income to be paid to the widow Mrs. Cornell, and to revert to the principal estate. This’was evidently what the last part of paragraph XII of the decree was intended to cover in addition to equalizing the payment of $45,000 to Mrs. Cornell. However, $45,000 is 90 per cent, of $50,000, añd 10 per cent, thereof is $5,000. Mrs. Cornell .has had $45,000, but only $4,500 has been credited to principal estate, so instead ¡of the trustee paying to the principal estate too much, he should really pay $500 more *230to Comply with the provisions. of paragraph XII of that decree and with the will of Thomas Cornell. " .

My-attention may he called to some part of the accounts now before me where this has been done, but I have failed, to find it, and my -understanding of the latter part-of paragraph XII was that the trustee under its -provisions was to pay sufficient to the principal estate to equalize the 90 per cent, paid to Mrs. Cornell. The trustee in his account will, therefore, credit the principal, estate with $500 from the income account.

It may easily be that some objection not satisfactorily settled or withdrawn has been overlooked by me; if so-, upon my attention being called to it, I will pass on it at once.

A decree may be handed up in accordance with this memorandum. • .

Decreed accordingly.