#### In the Matter of the Application of Antoinette L. Schermerhorn for an Allowance from the Estate of Francis W. Lasak.

*(Supreme Court, General Term, Second Department,*

*Filed February 10, 1890.)*

Wills—Trust—When income payable from: death of testator.

Testator gave a fund to Ms executor in trust for Ms daugMer, the income to be paid quarterly, and on her decease gave the principal to her children. By Ms codicil he increased the fund. The daughter was *197unmarried when the will was made, and was a widow dependent on her father when he died. *ELld,*that the provision was intended for her support and maintenance, and that the income may be allowed her from testator’s death.

Appeal from decree of surrogate denying application.

By testator’s will, lie gave to his executor $20,000 in trust to pay over the interest and income thereof to his daughter, Antoinette, in quarterly payments during her life, and on her death he gave the principal thereof to her children, or in default of issue to her brothers and sisters surviving. By his codicil, he gave to the executors $10,000 additional on the same trust

The daughter named applies for an allowance of the income from the time of his death.

The surrogate denied the application, delivering the following opinion:

Coffin, S.—As Mrs Schermerhorn is of full age and a leg-tee of income only, for life, the income will not commence to accrue until the expiration of one year from the death of the testator, and no part of it is payable until the end of the first quarter of the second year after his death. Ward on Legacies, 300; Perry on Trusts, § 575; *Carr*v. *Bennett, 3*Dem., 438, and cases cited. So that this application is premature. Even if, however, it commenced to accrue at testator’s death, it is quite clear that only such amount as should have accrued up to the time of granting the order, if ascertainable, could be allowed. Her death at any time would terminate the legacy.

But an appeal having been duly taken from the decree admitting the will to probate, it would seem that this court is precluded from granting the prayer of the petitioner in any event It is provided by § 2584 of the Code of Civil Procedure that a perfected appeal, in such case, stays all proceedings, and by § 2582 that an appeal from such a decree does not stay the issuing of letters, where, in the opinion of the surrogate, the preservation of the estate requires that letters should issue. Letters so issued confer upon the person named therein all the powers and authority, and subject him to all the duties and liabilities of an executor or administrator in any ordinary case *“*except that they do not confer power to sell real property by virtue of a provision in the will, *or to pay or satisfy a legacy,*or to distribute the unbequeathed property of the decedent *until after the final determination of the appeal.”*It is claimed, however, that the surrogate, under §§ 2717, 2718 and 2719, may make the order sought, and reference is made to a manuscript opinion of the general term of the first department in the matter of the petition of Mary I. Hoyt and another, for an allowance, as a controlling authority in this case. An entirely different question was under consideration there. Ho appeal had been taken, but an application was pending to revoke the probate and the court held apparently that under the last clause of § 2650, in the • article relating to revocation of probate, the surrogate had the power to make an order for a payment of a legacy under the provisions of said §§ 2717, etc. *198Section 2650 defines and limits the acts an executor may perform pending a proceeding to revoke probate, and provides, in the last clause, that he may perform “ such acts as he is expressly allowed to perform by an order of the surrogate, made upon notice to the petitioner.” But in case of an appéal from a decree in a probate case, where the appeal is from the entire decree, as it is here, no provision is found authorizing the surrogate to make any order permitting the executor, pending the appeal, to do any act whatever. The section, 2582, declares, in effect, that the executors shall not pay or satisfy a legacy. This court, therefore, in the absence of authority, cannot direct the administrator with the will annexed to disregard or violate the plain provisions of the statute, and especially where the perfected appeal stays all proceedings under the decree.

The request of the petitioners is denied.

*jRobert*Sewell, for app’lt; *Robert M*Robinson, for resp’t.

Pbatt, J.

We think the cases of *Pierce*v. Chamberlain, 41 How. Pr., 501; *Lynch*v. Mahoney, 52 id., 867; and *Cooke*v. *Meeker,*36 N. Y., 15, are authority in favor of allowing to Mrs. Schermerhom interest on the $30,000 fund commencing from the time of her father’s death.

Jjl the case in 36 N. Y., 15, the applicant was a minor; but the decision does not seem to be based upon that fact.

When the first $20,000 of the fund was put into the will, the applicant was an unmarried daughter of the testator. At the time of the testator’s death she was a widow who had no other dependence than the bounty of her father.

Taking all the facts into consideration, we think it may be said that the provision in the will is intended for her support and *maintenance;*and that the income therefrom may be allowed her from the date of her father’s death. To that extent we are of opinion her application should be granted.

Order reversed; costs to applicant out of estate.

Babkabd, P. J., and Dykman, J., concur.