the sum of £3,000 in purchasing a benefice for his godson, C. He also directed B. by and out of the monies arising from such sale as aforesaid, to lay out the sum of £4,000 in the purchase of lands in the county of Essex, as his nephew D. should choose; and he further directed B., by and out of the monies arising from such sale as aforesaid, to place the sum of £500 at interest in the funds in his own name, and to pay the dividends to E. for life. and afterwards to divide the principal as therein mentioned. The testator then gave three legacies of £100 each, and directed B. after payment of the above legacies, to invest in the public funds all the overplus monies arising from the sale of his said real estates, and to pay the dividends to F. and G. equally. The testator then proceeded to dispose of other parts of his property, and concluded with a general residuary bequest. The proceeds from the sale of the lands were less than £7,000. The questions were, whether the legacies were specific? and if so, whether F. and G. were entitled to any part of the fund with the other legatees, since what was given to them appeared to be residuary; and Sir W. Grant, M. R., was of opinion that the legacies were specific, upon the principle that the testator assumed he had at least £10,000 proceeds from the sale to dispose of, and that he portioned them out among the legatees. His Honor also considered the testator to mean that F. and G. should take at least what should remain after payment of the specific legacies, viz., £2,200 (the testator assuming that the proceeds would amount to £10,000, but if to more, then intending them the excess). The determination was, that if the lands had produced £10,000 the shares of F. and G. in it would have been £2,220; F. and G. were therefore entitled to so much of that sum as remained, after abating ratably with the other specific legatees." In Williams on Executors (Vol. 1, p. 921) it is said: Again, where the bequest was to my granddaughter the sum of £40, being part of a debt due to me for rent from A, she allowing what charges shall be expended in getting the same: Item, I bequeath to my grandsons C. and D., the rest and residue. of what is due to me from the said A., which is about £40 more, in equal shares, and they allowing charges as aforesaid;' these were held specific legacies. (Ford v. Fleming, 1 Eq. Cas. Abr. 302, pl. 3.)" The legacy in the sixth clause is a general legacy. (Tifft v. Porter, 8 N. Y. 516; Matter of Werle, 91 Misc. Rep. 402.) The assets are applicable to the payment of debts and administration expenses in the following order: First, the unbequeathed personalty as to which the testator died intestate; second, the general legacy contained in the sixth clause of the will, and last of all the specific legacies. The expenditure for the burial plot will be approved and the special guardian's objection to that item overruled. Let a decree be submitted on notice adjusting the account accordingly and tax costs. Decreed accordingly. Matter of the Estate of FREDERICK ROBITSCHER, Deceased. (Surrogate's Court, New York County, December, 1915.) WILLS-PROVISIONS OF ADDITIONAL EXECUTORS APPLICATION FOR APPOINTMENT OF ADMINISTRATOR WITH WILL ANNEXED. Where a will provides for additional executors in the event that testator's wife, the principal legatee and sole executrix, should not survive him, but no provision is made for the event of her death after the grant of letters testamentary to her, the proper course upon her death is to apply for the appointment of an administrator with the will annexed. APPLICATION for letters testamentary. Emilie M. Bullowa (Lawrence E. Brown, of counsel), for petitioner. FOWLER, S.- This is an application for letters testamentary. The testator appointed his wife sole executrix. He then named Benedict Joseph and two other persons, the appointment of all as executors to become effective in the event that his wife should die before he did, "and not otherwise." In the first codicil he named Frederick B. Joseph in place of Benedict Joseph, deceased, and declared that his will should be construed as though the name of Frederick B. Joseph were inserted therein instead of the name of Benedict Joseph. By the second codicil he confirmed his will in all respects, in the event that his wife survived him; he recited the previous change in executors, stated that Frederick B. Joseph had died, and then in similar language to that used in the first codicil provided as follows: "I am desirous that Arthur M. Bullowa (the applicant) shall be substituted as a trustee and executor of my said will in the place and stead of the said Frederick B. Joseph, deceased, and I do hereby make, constitute and appoint the said Arthur M. Bullowa one of the executors and trustees of my said will and codicil." The single clause above quoted, on which the applicant rests his contention, is as follows: " and I do hereby make, constitute and appoint the said Arthur M. Bullowa one of the executors and trustees of my said will and codicil." The will was probated in the year 1912. Letters testamentary were issued to Esther Robitscher, widow of the testator. She acted as executrix of the will until her death, which occurred in November, 1915. There is now no representative of the estate, and Arthur M. Bullowa applies for letters testamentary. It is a well-established rule that where there is an uncertainty regarding the appointment of an executor the intent of the testator must be sought, and that slight expressions in his will may suffice to determine such intent. It is clear that had Benedict Joseph survived the widow he would not have been entitled to letters testamentary. If the widow survived, she was to be the principal legatee and sole executrix. If she did not survive, other trusts were created and other executors and trustees appointed. Had Frederick B. Joseph survived the widow he could not have received letters, as he was expressly named in place of Benedict Joseph. It appears that the substitution of Arthur M. Bullowa for Frederick B. Joseph was essentially of the same character as the substitution of the latter for Benedict Joseph. The single clause on which the applicant depends cannot be considered independently from the language immediately preceding it, which is similar to that used in filling the first vacancy. The testator merely made provision. for the additional executors in the event that his wife should not survive him. He made no provision for the event of her death after receiving letters. The cases cited in support of the application I think are not in point. The proper course is to seek the appointment of an administrator with the will annexed. Application denied. Matter of the Estate of MARTIN GROSSMAN, Deceased. (Surrogate's Court, New York County, December, 1915.) ACCOUNTING IN SURROGATE'S COURT-EXECUTORS AND ADMINISTRATORS-TESTAMENTARY TRUSTEES-WHEN EXECUTORS ENTITLED TO FULL COMMISSIONS -CODE CIV. PRO., § 2753. Since September 1, 1914, commissions to testamentary trustees upon an accounting in the Surrogate's Court must be allowed in accordance with section 2753 of the Code of Civil Procedure, the last paragraph of which provides that "If the gross value of the principal of the estate or fund accounted for amounts to $100,000, or more, each executor, administrator, guardian or testamentary trustee is entitled to the full commission on principal and income allowed therein to a sole executor, administrator, guardian or testamentary trustee," and not under section 3326 of said Code. The gross value of the principal of an estate is the determining factor as to whether or not two testamentary trustees shall each be entitled to full commissions on principal and income and the amount of the latter has nothing to do with the right to more than one full commission.. Where the gross value of the principal of an estate consists of unsold real estate which is not to be distributed or delivered, it cannot be taken into consideration so as to bring the value of the estate beyond $100,000. Principal and income may not be added together in order to make an estate of over $100,000 and thus entitle each trustee to full commissions. Where the principal of a trust estate as accounted for amounts to $84,578.78, and the income accounted for amounts to $136,106.34, the two testamentary trustees may be allowed one full commission to be divided between them. PROCEEDING upon the judicial settlement of the account of trustees. Thornton & Earle, for trustees. FOWLER, S.-Upon the judicial settlement of this account of the two trustees under the last will and testament of the abovenamed deceased, a question as to the right of each trustee to full commissions is presented by reason of the fact that the principal accounted for amounts to $84,578.78 and the income accounted for amounts to $136,106.34. The accountants claim that they are each entitled to full commissions, but this does not appear to be correct. Prior to September 1, 1914, trustees' commissions upon accountings in this court were allowed in accordance with the provisions of section 3320, Code of Civil Procedure, but the revision of 1914 adopted in part the language of section 3320 and incorporated it into section 2753 and made that section in terms apply to trustees, so that now trustees accounting in this court will have commissions allowed in accordance with section 2753, and not in accordance with section 3326. The last paragraph of section 2753 provides that "if the gross value of the principal of the estate or fund accounted for amounts to $100,000 or more, each executor, administrator, guardian or testamentary trustee is entitled to the full commission on principal and income allowed therein to a sole executor, administrator, guardian or testamentary trustee. * * " |