#### Matter of the Judicial Settlement of the Account of Harry Wolff as Executor of the Estate of William Wolff, Deceased.

(Surrogate’s Court, Kings County,

January, 1913.)

Executors and administrators — provision in will for payment of legacies— provision that legacies should be borne ratably — trusts.

Where, after a bequest of the net income of a certain trust fund directed to be invested at five per cent, per annum, to testator's daughter for life, and several general legacies, the will provided that in the event the estate should be insufficient to pay in full the legacies the trust fund provided for the daughter was to be paid in full, and that the reduction, if any, should be borne ratably by all the legacies, it being the testator’s intention that the said trust fund should remain to the daughter unimpaired, the income therefrom constitutes a legacy to the daughter as one for support and maintenance payable at testator’s death.

Where, without any assigned fault of the executor, no income has been earned, the decree on the judicial settlement of his accounts should provide for the payment of said legacy from the principal of testator’s general estate from the time of his death, with interest at five per cent, per annum, though the condition *178of the estate was such that the payment was impracticable or impossible, upon the theory that in some form the equivalent of said five per cent, on the trust fund was separated from the general assets and given to testator’s daughter.

The enforcement of any complaint, that the executor had improperly held the estate in a barren condition, was for the general legatees and not testator’s daughter.

Proceeding upon the judicial settlement of the account of an executor.

L. J. Morrison, for executor.

George Wood, for objector.

Jacob Goodman, for Rachel Wolff, general guardian for Rosalind Wolff, infant.

Ketcham, S.

The will contains a legacy of $5,500 in trust to invest on first mortgage upon improved real estate at the rate of five per centum and to pay the net income to a daughter during her life.

There follow several general legacies, and then this provision :

> *“ Ninth.*In the event that the total of my estate shall be insufficient to pay in full the legacies above provided for, I direct that the full sum of five thousand five hundred dollars hereinabove provided for my daughter, Esther Wolff, shall be paid in full, and that the reduction, if any, necessary shall be borne ratably by all the other legacies; it being my clear Will that the share of my said daughter’s trust fund shall remain for her unimpaired.”

The estate, except for items which were less than the debts and expenses of administration, was unproductive stock in a real estate corporation. This stock was held for two years until a fair chance arose for the sale of the corporate property and the conversion of the stock into money by the executor.

The .provision for the daughter, especially in.view of the solicitude of the testator that the trust for her benefit should *179be preferred to other legacies, must be regarded as a legacy for support and maintenance. It .was, therefore, a gift to take effect at the death of the testator. Payable then, it should now be paid for the entire period elapsed since the death, less the expenses of the administration of the trust Matter of Kings County Trust Company, 141 App. Div. 43.

It is not perceived that the rule in regard to this legacy can be other than that which the law would apply if the gift had been of a specific sum payable at the testator’s death or of an annuity to commence at that time. The subject of the gift which was carved out of the general estate was income upon the trust fund at the rate of five per centum. “ It is the income which constitutes the respondent’s legacy.” Matter of Stanfield, 135 N. Y. 292, 293.

As to legacies of this kind, interest is payable from the testator’s death or, as in this case, the prescribed rate of income is to be paid from that time even though the condition of the estate was such that the payment was impracticable or impossible.

The only distinctive feature of this case is that,-without any assigned fault on the part of the executor, there has been no income earned, and the disputed legacy, if payable, must be taken from the principal of the general estate. The cases which approach most nearly to the present question have been concerned with estates in which there was some increase which could be applied to the preferred legacy and resort to the residuary principal was not required. In some of them it has been said, without argument and without any direct relation to the question involved, that if no income had accrued none could be paid. In one case, where no income had accrued and the executor had failed for two years to convert the estate for the payment of a legacy in trust, the allowance of interest was regarded as a penalty upon the executor for his default. Matter of Travis, 85 Hun, 420.

The only source from which the beneficiary of the trust can be awarded relief is the principal of the general estate and then only upon the theory that in some form the equivalent of five per centum per annum on $5,500 was separated from the general assets and was given to the beneficiary. AH *180that the general legatees took was the residue after the trust provision should be fully satisfied, and it is for them, and not the primary legatee, to enforce complaint if the executor has improperly held the estate in a barren condition. The theory above stated must prevail if, as was said in Matter of Stanfield, supra> “ It is the income which constitutes the. * * ***legacy.”

This must result notwithstanding the *obiter*suggestions that there can he no payment of income unless income has been earned.

Decreed accordingly.