#### GOULD v. RUTHERFURD et al.

(Supreme Court, General Term, First Department.

June 15, 1894.)

Wills—Rights op Devisees.

Testator bequeathed property to trustees to pay the income in equal shares to his two sisters, and provided that, at the death of the last surviving sister, one-half of the principal should go to each of two of the trustees; but no disposition was made of the income after the death of one sister, and before the death of the other. *Held*that, on the death of one of the sisters, her share of the income belonged to the trustees; 4 Rev. St. (8th Ed.) p. 2435, § 40, providing that, where the rents and profits of the estate are not disposed of during the valid suspension of the power of alienation, they shall belong to the persons entitled to the next eventual estate. 26 N. Y. Supp. 921,_ affirmed.

Appeal from special term, New York county.

Action by R. Baring Gould, as trustee, against John A. Rutherfurd and others, for the construction of the will of Alfred G. Myers, deceased. From so much of the judgment construing the will (26 N. Y. Supp. 921) as relates to costs, plaintiff appeals; and, from the portion which does not relate to costs, some of the defendants appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and PARKER and BARRETT, JJ.

John V. Bouvier, Jr., for appellant Gould.

H. R. Squier (G. F. Thomson, of counsel), for appellants Myers and others.

B. Tuska, for respondents.

VAN BRUNT, P. J.

It seems to us that it would be difficult to imagine a case to which the statute in reference to undisposed of rents and profits could be intended to apply if it does not control the case at bar. It is urged upon the part of the appellants that the income which Matilda Myers, one of the beneficiaries, was entitled to receive as long as she lived, devolved upon her sister at her *363death. An examination of the terms of the will, however, does not bear out any such construction; and such a result can be arrived at only by making provisions in the will for a contingency which the testator himself does not seem to have anticipated. He gives and bequeaths his personal property, remaining after certain specific dispositions, to the plaintiffs, as trustees, in trust to collect, invest, and reinvest the same, and pay the income thereof in equal shares to his sisters, Matilda Myers and Louisa Myers. He further provides that, at the death of the last surviving of his sisters, one-half of the principal of his estate shall go to his friend and partner, John A. Butherfurd, forever, and that the other or remaining half shall go to William Walton Butherfurd, forever. Matilda Myers, one of the beneficiaries under the will, having died, there appears to be no disposition of the income of the share the income of which she was entitled to receive during her life. It is to be observed that the suspension of the power of alienation in respect to this trust estate extends, as to the whole of it, to the death of the survivor of the two sisters. There is thus a valid suspension of the power of alienation, during the continuance of which there is no disposition made of one-half of the rents and profits. Hence, under the statxite, such rents and profits belong to the persons entitled to the next eventual estate.

There is no ground for the claim that the surviving sister is entitled to hold the same. There is no such provision in the will. The income is given in equal shares to the two sisters, namely, one-half of the income to each; and, when Matilda died, there was no disposition of that which she woxild have received had she continued living. Neither is there any ground for the claim that such income is payable to the next of kin. The provisions of the statute expressly provide for a different disposition, and one which is probably more in harmony with the wishes of the testator. Indeed, it may safely be assumed that the will in question was made having in view the provisions of the statute in reference to undisposed of income, rather than that the testator was ignorant of the law, and had an intention in respect to the income to which he gave no expression. The defendants Butherfurd certainly will be entitled to receive absolutely the whole of the fund from which the income arises upon the termination of the intermediate estate; and, as has already been observed, if they do not hold the next eventual estate, it is difficult to see where it is located.

There is no ground for the objection in regard to the disposition made as to costs. There would be no propriety in taxing the successful party with the payment of the whole of the expenses of this litigation. The costs are charged against the principal of the fund which forms the subject-matter of the trust, and we think properly so charged.

It may be observed in passing that some question is made in regard to the income which accrued during the lifetime of Matilda Myers, and which had not been paid over to her at the time of her death. An examination of the case shows that no disposition was made of this income by the decree, except from the time of the death of Matilda Myers, and therefore there is no such question involved *364ou this appeal. The judgment should therefore be affirmed, with costs to the respondent, to be paid out of the principal of the fund.. All concur.