The rules under which wills are interpreted are sufficiently indulgent to human infirmity without any new excursion into the regions of unmarked sensibility.

If in this will the gift over had been merely "upon the death of either," without the addition of the words "or all," who could doubt that the principal fund was to be paid over to the remaindermen upon the death which has occurred? What has taken away the essence of the word "either" when it is found in association with the more expansive word? What will permit it to be discarded if it preserves the meaning which it would have borne if it stood alone? It must be read or it must be obliterated.

It is true that of the two events upon which the remainder is alternatively dependent, one if it shall come to pass, will include the others; but that is no reason why a provision which suspends a remainder upon an event which is sure to happen first should be expunged in construction and the event which can never come into effectual operation be taken as the only condition. Rather might it be said that the direction for a payment to be made in the event which can never happen until after the whole trust is determined by an earlier event is as harmless as it is ineffectual.

It is argued that the devise to the trustees should be regarded as separable into three trusts, each assignable to one of the principal beneficiaries and each limited over upon the death of the beneficiary to whom it may be assignable. This device is a favorite of the law, but is only available to save the disposition from the menace of the statute against perpetuities. The construction, if adopted in this case, would be of no use unless it were supplemented by a conclusion, unquestionably forced, that the "principal of said trust fund" and the coefficient expression "said trust fund" did not mean the entire residue. It would further require a finding that in the phrase "either or all" one or the other of the two conjoined words is without value.

Where the "residue," "principal of the trust fund," and the "trust fund" are phrases of interchangeable meaning, the entity which they represent might well be resolved into independent funds to save the trust from destruction; but in this case this interpretation is checked, if not forbidden, by the testamentary conception of the trust fund as indivisible and there is no need to invoke this last resort of constructive zeal.

The integrity of the trust may be preserved by a reading against which no part of the instrument is arrayed, viz., that the intention was to devote the income of the residue to the three persons named and to pay over the principal upon a single death among these three persons. Where the desideratum is to save the trust, the law will choose that one of two processes of construction by which the trust may be conserved with the least hostility to the general text of the provision. The construction to which this discussion tends is not inconsistent with the purpose of the testatrix to prevent waste of her dear father's money and to prevent the wives of her brothers from participating in her estate.

This construction is questioned upon the ground that the payment of the remainder at this time fails to preserve the rights of children of any subsequent marriage of either of the brothers of the testatrix. The answer to this is that the provision which lets in the children of any subsequent marriage provides only for children of that class who shall be in being at the time when the remainder falls in.

It is suggested that the true explanation of this will is that the words "either or" crept into the will by "unintentional error," and that the only event upon which the remainder depends is the death of all the first named beneficiaries. That this construction would result in destruction is a good reason that it should be shunned. That it would involve a finding of fact without evidence, and indeed against the decree of probate which established the terms of the will, should lead to its rejection.

The contention is made that it is unreasonable and improbable that the testatrix intended to create a trust for her brothers and sister which was to terminate upon the death of the one first dying and that it is reasonable to believe that she proposed a scheme which would afford them maintenance for their lives respectively. This is inadmissible if the provision in question is free from ambiguity, but if it were applicable it would lack support in truth. The circumstances of the beneficiaries as they were understood by the testatrix are not shown. As to her brothers and sister, the case is not as if the provision in question. was the only effort for their benefit. Each was secured for life the income of a specific sum sufficient to exclude the intention that each of them was to enjoy his income from the residuary trust during his or her whole life.

There is no provision in the will for Herbert Lewis except that he is named as a remainderman of two of the trusts for specific amounts. His aunt's regard for him is shown in her will, and, if speculation is to be indulged as to her intention concerning his welfare, it is not inconceivable that she chose for him an early remainder under the fourteenth paragraph of her will.

It has not been possible to discern an ambiguity in the provision under examination. There is doubt of the decedent's discrimination in selecting her words, but none as to the only concept which her chosen language projects.

The petitioner, Herbert Lewis, is entitled to one-half of the principal of the residuary trust fund, and his petition is granted.

Application granted.

(86 Misc. Rep. 136)

In re SMITH'S WILL.

(Surrogate's Court, Rockland County. June, 1914.)

1. WILLS (§ 684*)-BEQUEST-RATE OF INTEREST.

Where a will directed that an investment be made and the income paid to the beneficiary named, and before the fund was set apart and invested the estate did not earn the full legal rate of interest, it was within the surrogate's discretion to allow the beneficiary such rate of interest, though below the legal rate, as he deemed proper, having reference to the total amount of income earned, and the appraised value of the estate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1614-1628; Dec. Dig. § 684.*]

2. WILLS (§ 733*)-CONSTRUCTION-VESTING OF ESTATE.

Where the estate is sufficient to satisfy debts and other charges, and so invested as to produce an income from the date of testator's death, a bequest of income to a person for life or a shorter period vests him with title to such income from testator's death, unless a contrary intention must be inferred from some provision of the will.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1819-1846; Dec. Dig. § 733.*]

3. WILLS (8 734*)-CONSTRUCTION-INTENTION. '

Where a sum is left in trust, with directions that the interest and income be applied to the use of a person, such person is entitled to the interest thereof from the date of testator's death, though not entitled to demand payment until expiration of one year from issuance of letters testamentary; the rule that general legacies shall not bear interest until expiration of one year from the granting of letters testamentary not applying in such case.

[Ed. Note. For other cases, see Wills, Cent. Dig. $$ 1847-1872; Dec. Dig. § 734.*]

4. TRUSTS (§ 316*)-TESTAMENTARY TRUSTEE-RIGHT TO COMMISSION.

Where there had been no judicial settlement of a testamentary trustee's account of the income which had been allowed to accumulate and remain in his hands, the trustee's retention of his full 5 per cent. commission out of this income was unauthorized under Code Civ. Proc. § 2802, providing that a testamentary trustee shall render an annual account and have it settled, and that the surrogate shall allow him the same commissions as are allowed to executors or administrators by section 2730; a trustee being entitled to an allowance of merely one-half of the usual commission on the total income received, and the remaining one-half being allowable when he shall have used and applied the income.

[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 445-459; Dec. Dig. § 316.*]

5. WILLS (§ 684*)-TESTAMENTARY TRUSTS-EXPENSES-CHARGES AGAINST IN

COME.

Testator devised a farm with the implements and stock thereon to his two grandchildren, with provision that the executor was to hold the same in trust until the youngest child became of age, and to rent the farm and collect the rents and, after paying all expenses, including commissions, apply the net income to the use of such grandchildren. The executor acting under a power of sale, sold a part of the farm and invested a large part of the proceeds in interest-bearing securities. Held, that expendi tures, connected with the farm, including wages of a caretaker and charges for repairs, insurance, and taxes for two years during which the farm was wholly unproductive, were chargeable against the income.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1614-1628; Dec. Dig. § 684.*]

6. WILLS (8 684*)-CONSTRUCTION-TESTAMENTARY TRUST "INCOME."

Where testator devised a farm with the implements and stock thereon in trust for his two grandchildren, with directions to the executor to ap ply the net income to the use of the grandchildren during the continuation of the trust, the proceeds of the sale of farm produce, including the natural increase of the stock, constituted "income."

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1614-1628; Dec. Dig. § 684.*

For other definitions, see Words and Phrases, vol. 4, pp. 3501-3507; vol. 8, p. 7685.]

Judicial settlement of the account of the trustee under the will of William Alexander Smith, deceased. Decreed according to opinion. See, also, 80 Misc. Rep. 140, 141 N. Y. Supp. 798; 85 Misc. Rep. 636, 149 N. Y. Supp. 24.

Emmet & Parish, of New York City, for trustee.

Lyman Ward, of New York City, for Dinah W. Smith and Robert William Hobert Smith.

Huntington, Rhinelander & Seymour, of New York City, for Clara Hunter Stewardson.

Frederick G. Grimme, of New York City, special guardian, and attorney in person, for William Alexander Smith, 3d, and Margaret Gurnee Smith.

MCCAULEY, S. [1] The testator, by the fifth clause of his will, directs that securities representing a par value of $10,000 and $4,036.61 in cash shall be set aside and invested by the executor, as trustee, for the benefit of the testator's granddaughter, Margaret Gurnee Smith, during her minority, and the trustee is directed to collect and receive the income therefrom and, after payment of all proper expenses and commissions, to use and apply the net income for the benefit of the cestui que trust during her minority, and upon her arrival at full age to transfer and deliver to her the principal. By the sixth clause. of the will a precisely similar trust, in precisely similar language, is created for the benefit of the testator's grandson, William Alexander Smith, 3d, during his minority. The testator died May 31, 1911. His will was admitted to probate and letters testamentary thereon issued June 29, 1911.

[2, 3] The executor on the 28th day of September, 1911, set apart and transferred to himself, as trustee, under the fifth and sixth clauses of the will, respectively, the securities and cash therein referred to. To each of the cash payments interest was added at the rate of 4 per cent., from the date of the testator's death, the amount of interest in each case being $52.47. The special guardian for the infant beneficiaries, contesting the account, insists that the trustee should be charged with interest upon the amount transferred to him in cash at the legal rate, namely, 6 per cent. The objection is not in my opinion well taken. Manifestly it was the intention of the testator that the interest upon these respective trust funds should be applied toward the maintenance and education of the beneficiaries during their minority. Where the estate is sufficient for the liquidation.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

of debts and other charges, and so invested as to be productive of income from the death of the testator, a bequest of income to, or for the use of, a person for life, or for a shorter period, must be construed to invest the beneficiary with title to such income from the date of the testator's demise, unless there is some provision in the will from which a contrary intention is to be inferred, and the executor or trustee must account to him for the interest from that date. Matter of Stanfield, 135 N. Y. 292, 31 N. E. 1013; Cooke v. Meeker, 36 N. Y. 15. In the latter case the court says:

"The authorities would seem abundant, therefore, to sustain the doctrine, that when a sum is left in trust, with a direction that the interest and income should be applied to the use of a person, such person is entitled to the interest thereof from the date of the testator's death."

See, also, Matter of Baker, 57 App. Div. 44, 68 N. Y. Supp. 44; Conklin v. Clark, 48 Misc. Rep. 432, 96 N. Y. Supp. 914. The rule that general legacies shall not bear interest until the expiration of one year from the granting of letters testamentary has no application in such a case. Matter of Stanfield, supra; Matter of McGowan, 124

N. Y. 526, 26 N. E. 1098.

The beneficiaries of the trusts, under the rule established by these cases, are entitled to all the income arising from the date of the testator's death, inasmuch as the will contains no provision from which a contrary intention can be inferred.

The beneficiaries were not entitled, however, as a matter of strict legal right, to demand payment of the income due them until the expiration of one year from the issuance of letters testamentary, but upon the expiration of that period they were entitled to demand and receive their shares of the net income which had previously accrued. Matter of Stanfield, supra.

Where a certain amount of an estate, consisting of personalty, is directed by the will to be invested by the executor, and the income to be paid over to beneficiaries named, and after the death of the testator and before the fund is particularly set apart and invested the estate does not earn the full legal rate of interest, it is within the discretion of the surrogate to allow the beneficiaries such rate of interest as he may deem proper, having reference to the total amount of income earned by the estate, and the appraised value of the estate. Matter of Stanfield, 64 Hun, 281, 18 N. Y. Supp. 913, and cases cited.

It is therefore within the province of this court to determine the rate of interest, which shall be allowed from the date of the testator's death, upon that portion of the trust funds, consisting of cash, which on September 28, 1911, was set apart and invested for the benefit of the cestui que trust.

An examination of the account filed by the executor at the time its account as trustee was filed shows that many of the securities, in which the moneys and funds of the estate were invested at the time of and following the testator's death, bore a lower rate of interest than 6 per cent., and that the net income from the estate in all probability did not exceed 4 per cent. It has been held that 4 per cent. is a reasonable rate