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W. Bainbridge, Maria Louise Harris and Charles Edward Bainbridge, or to their children, etc., there shall be equally deducted such a sum as would, if added to the share to be received by my daughter, Lucy Anna Bainbridge, under said clause, make up the same to the sum of ten thousand dollars, and that such sum, so deducted in equal portions from the said four shares first above mentioned, shall be held in trust by my executors during the life of my said daughter, Lucy Anna, or until she shall marry, they paying her the income thereof in quarterly payments until she shall die or marry."

The accountants in this proceeding present all that is necessary for the adjustment of their rights and duties either as executors or as trustees under the codicil. They insist that the trust fund should be calculated upon the gross value of the estate as it stood at the death. of the testatrix, without deduction for debts or expenses of administration. Against this it is contended not only that the trust fund cannot be set apart until the net amount of the estate be ascertained by a decree in this proceeding, but that in the amount of the estate upon which the trust fund is calculable must be included the increase which has accrued during the four years of administration.

The truth lies midway of these propositions. The calculation of the trust fund cannot be made upon the assets as they were at the time of death, for that would take no account of the burdens of the estate which executors must discharge. The fund from which the trust fund is to be derived is the residue, and the residue is that which remains after administration. There is no way by which this residue, or the trust fund as a part thereof, can become known except by the balancing of the executors' accounts. "An executor cannot be held to hold a fund as trustee until the trust fund has been in some way legally ascertained, identified, and separated from the general funds of the estate, and the trustee has entered upon the duties of his office as trustee as distinct and separate from his functions as executor.” Matter of Williams, 26 Misc. Rep. 636, 57 N. Y. Supp. 943, and cases cited. But this is far from saying that the trust fund is to be computed upon all the moneys, both principal and interest, which are found to constitute the balance of the estate. The purpose of the trust was to secure the maintenance of the beneficiary during her life, unless she should marry. It was within the intent of the codicil that she should be maintained during each of the four years first following the decedent's death no less than during any later part of her life.

The codicil provides that the trust estate shall be held in trust during "the life of my said daughter." This means during each year of such life, from the beginning of the trust, and the trust begins at the death of the testatrix, to which time the will relates back. Trust provisions for maintenance, when found in wills, are usually construed to intend the application of the income from the time of death; and it is plain that this codicil was inspired by solicitude for the daughter, who, of all the children of the testatrix, most needed its provision.

That the design of the instrument was the maintenance of the beneficiary appears in the direction that the income be paid quarterly, and that the trust should cease upon the death or marriage of the beneficiary. This daughter, so long as she remained unmarried, was preferred in her mother's providence over sons who were able to help themselves, and daughters whose husbands were able to help them.

“Where the interest or income, in trust, is to be applied to the use of a person, such person is entitled to interest from the death of the testator." Cooks v. Meeker, 36 N. Y. 15; Rodman v. Fincke, 68 N. Y. 239. This is especially true of a trust for support and maintenance where it can be seen that the testamentary intent can only be fulfilled by the application of income from the beginning of the trust period. Both cases last cited make it plain that neither the rule nor its reason is affected by the mere fact that the amount of the trust provi. sion cannot be known at the death of the testator.

In Rodman v. Fincke, supra, a trust was created as to the proceeds of the sale of lands if they amounted to $30,000, and it was provided that, if the proceeds did not equal that sum, there should be added thereto, out of the residuary estate, a sum sufficient to make up the difference. The deficiency occurred, and the fund was re-enforced from the general estate. The question was presented whether, upon the sum taken from the general estate, interest was payable from the time of death. In the manner by which the fund was to be computed, and in its uncertainty for years, the facts at bar are parallel. In that case Judge Rapallo says of the grandchildren to whom the income was payable for life:

“As to the sum necessary to make up the deficiency, the grandchildren cannot be said to have received the income of that during their lives, if interest thereon does not commence until the precise amount is ascertained by a sale, which, in the present case, was postponed for upwards of eight years. In some cases where the amount of the fund cannot be ascertained till a period after the testator's death, but the bequest is of the interest on such fund during the life of the legatee, it has been held that to carry out the intention of the testator the legatee for life must be allowed interest on the fund as afterwards ascertained, to be computed from the death of the testator. [Citing cases.] This rule is especially equitable when the fund has all the time been yielding income in the hands of the executors. See Hilyard's Estate, 5 Watts & S. (Pa.) 30.”

The rule, with all its variations, is fully treated by Judge Thomas in his Estates Created by Will (volume 2, p. 1518 et seq.).

The trust fund should be computed upon the net principal of the estate, and the executors should pay to themselves as trustees such part of the income as shall bear to the whole income the same proportion as the trust fund bears to the entire net principal, and the income which is received by the trustees should be paid to the beneficiary. The payment by the executors of a part of the costs awarded by the judgment in Bainbridge v. Harris is disallowed. The only meaning of the judgment is that all the costs awarded were to be paid out of the partnership assets which were left in the hands of the surviving partners, after deducting therefrom the sums payable to the decedent's estate.

The specific language excludes the suggestion that the costs were in any part payable by the estate, or were payable in such manner as to become a charge upon the estate. Payable out of the partnership assets, these costs were to be borne by those who had the legal ownership of the partnership assets. There was no owner of them except the plaintiffs' surviving partners. The representatives of the dece

right to an account from the surviving partners and to a payment of such sums as should appear due to the estate upon such account. The expenses of litigating that account might have been imposed upon the estate in part, but this was not done. Moreover, the judgment provided for the full payment to the executors of $31,000. Had the decretal purpose been to make the estate pay any part of the costs, a sane and ordinary form of judgment would have provided for the payment of the sum named, less the designated portion of the costs. The judgment is best understood in the light of the provision that if the $31,000 be not paid the partnership real estate shall be sold and its proceeds devoted to paying not only the $31,000, but the costs awarded by the judgment. A judgment which imposed the costs wholly upon the surviving partners in the case of a sale must have intended the same imposition if the sale did not become necessary.

Let decree be presented accordingly.
Decreed accordingly.

(62 Misc. Rep. 173.)

In re SERGANT'S ESTATE. (Surrogate's Court, Oneida County. January, 1909.) 1. EXECUTORS AND ADMINISTRATORS (8 506*)-SETTLEMENT-SUBCHARGING EXEC

UTRIX-EVIDENCE.

In the matter of the settlement of an estate, evidence of certain of the heirs as to transactions which would increase the amount of the estate and surcharge the executrix held so improbable and inconsistent as to compel finding for the executrix.

[Ed. Note.—For other cases, see Executors and Administrators, Dec.

Dig. 8 506.") 2. EXECUTORS AND ADMINISTRATORS ($ 475*)-SETTLEMENT OF ACCOUNTS.

On the settlement of the accounts of an executrix, proceeds of real estate of testator not sold by her as executrix should not be charged against her.

(Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. 8 475.*]

In the matter of the judicial settlement of the estate of Charles Sergant, deceased. Decree rendered.

Brown & Brown (Charles D. Thomas, of counsel), for petitioner.
J. W. Watts, personally and for administratrix Utter.
Henry F. & James Coupe, for contestant Beal.

SEXTON, S. Charles Sergant died at Bridgewater, N. Y., Jan. uary 23, 1892, and left a will, dated June 11, 1884, which was duly admitted to probate June 6, 1892, and letters testamentary were issued to Ann Maria Beal. An inventory was filed August 2, 1892, showing an estate of $3,902.66. July 20, 1893, an account was filed, showing a balance in her hands for distribution of $3,249.93. July 23, 1903, a decree settling and adjusting said account was left at the surrogate's office, and is now with the papers on file, which, though complete, was not signed by the surrogate. •For other cases see same topic & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

116 N.Y.S.-18

The will of Charles Sergant provided : “After all my lawful debts are paid and discharged, I give, devise and bequeath to Ann Maria Beal, wife of my friend, John Beal, of Bridgewater aforesaid, all my property both real and personal, of which I die possessed, to be hers during her lifetime, and after her death, the avails of my property, of which she has the use and income during her life time, is to be divided equal. ly among her surviving children.”

Said Ann Maria Beal died May 30, 1907, leaving William J. Beal, Charles M. Beal, and M. Cornelia Utter, her surviving children. William J. Beal was a subscribing witness to the Sergant will, and was used to prove it. On June 24, 1907, said Charles M. Beal, and his sister, M. Cornelia Utter, were duly appointed administrators with the will annexed of the Sergant estate, and filed separate bonds. Ann Maria Beal, executrix of the Sergant estate, left a will, which was probated June 24, 1907. Letters testamentary were issued to William J. Beal. October 2, 1907, William J. Beal, as executor of the Beal estate, filed his account of the proceedings of Ann Maria Beal in the Sergant estate, showing a balance of $3,221.31. October 24, 1907, objections were filed to said account by said Charles M. Beal, alleging that the account in the Sergant estate should be surcharged with $1,750, the amount of a note, dated April 1, 1888, payable to Charles Sergant, or bearer, with use, and signed by the contestant, and claimed to have been fully paid by him to Ann Maria Beal as executrix of the Sergant estate ; that said Sergant estate should also be charged with $385, alleged proceeds of some land, belonging to the Sergant estate, conveyed by Ann Maria Beal to the Unadilla Valley Railway Company, by deed dated October 15, 1892. All of the evidence given upon the trial was confined to these items.

The contention of the contestant is that he April 1, 1888, borrowed $1,750 from Charles Sergant, and gave him his note therefor, and after his death the contestant paid Ann Maria Beal, executrix of the Sergant estate, all interest on said note, and April 1, 1895, $1,855, in full of principal and interest, and took the note into his possession; that the Sergant estate should now account for the principal of said note, $1,750. The estate contends that the face of said note, with the four indorsements thereon, all in the handwriting of contestant, is a fabrication, and never was in the possession of Charles Sergant or his executrix, Ann Maria Beal. As to the $385, the expressed consideration in said deed, the estate contends that this court has no juris. diction to determine that item.

The history of the note as given by the contestant, his wife and son, is substantially that it was written by Charles M. Beal April 1, 1888 (Easter Sunday), at his home in Bridgewater, on a piece of paper taken from an account book, and with a gold pen used by him when a boy in school. The ink used was taken from a small, wooden, pocket inkwell, with screw cap and small glass bottle inside, into which no ink had been put prior to April 1, 1888, since he left school at the age of 19 years, a period of 13 years and about 31 years ago. The note was then delivered to Sergant, and contestant received from him in cash $1,750. It was not put in any bank. Sergant took the note, fold

mother, Ann Maria Beal, $420, back interest, and paid it each year till April 1, 1895, when he paid her $1,855 at her house, in full of principal and interest, and took up the note, returned home, and delivered it to his wife. The note then bore all the evidences of hard usage and creases, and was in substantially the same condition as to folds and creases, and in the same shape and condition as when produced upon the trial in court. The wife kept it until the trial.

The following words and figures appear upon the back of the note, to wit:

"April First, 1892, Received on the with note Int four Hundred and Twenty dollars, $420.00."

"1893, April first I Received on the with in note In one Hundred and five dollars, $105.00."

"1894, April first I Received on the within note one Hundred and five dollars, $105.00."

“1895, April 1, I Received on the with in note In full payment Eighteen Hund and fifty five dollars, $1855.00."

They were made at the time of their dates by the contestant, with the identical pen and ink used in drawing the note. The inkwell had never been filled or ink changed in any manner between the time contestant left school and the last indorsement, April 1, 1895, a period of 20 years. The note shows evidence of being folded from end to end a number of times. When contestant received the note, and before he tore his name off, it had on it the creases from folds. On April 1, 1895, the contestant took from his house $1,855, and with his son, Adelbert, who was going to school, drove to his mother's house in the village of Bridgewater, where Adelbert left the wagon and went to school. The contestant showed his son a large roll of money on that morning. The money to pay the note was made up of $1,000, obtained from Jones & Townsend in cash, and from a sand bank in the cellar, and a teapot in the house of contestant, and some was furnished by Sarah J. Beal. A portion of the money came from baling hay and an auction sale held in 1894. Adelbert, the son, frequently took dinner with his grandmother in 1895, and during the month of March or April of that year she told him several times she wanted him to tell his father that she wanted some money on the Sergant note, or all of it, and he told his father each time. She showed Adelbert the note. He testified it looked very much like Exhibit 2. “It was a piece of pad paper.” Adelbert and his father were at Ann Maria Beal's April 1, 1895, in the morning. Adelbert took dinner with Mrs. Beal that day, and she told him in substance that she had straightened all up with his father on the Charles Sergant note, and that things were square. This was at about "quarter to 1 o'clock” in March or April. Two or three days thereafter Adelbert next saw said note in his father's possession.

We will first consider the $1,750 note, of which the following is a copy:

“Bridgewater April first 1 1888 For value received I promise to pay Charles Sergant or bearer one year from date $1750.00 Seventeen Hundred and fifty dollars with use.

Ch."

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