Hascall v. King

'O’Brien, J.:

There are two principal questions involved on this appeal. The first is as to whether the devises to Vincent 0. King, the testator’s .son, of the factory property and the farm at Wilton, known as the King homestead, contained in the 3d and 4th paragraphs of *287 the will, which in form were, to “ my said son, his heirs and assigns forever absolutely,” are destroyed or cut down or affected by the 6th clause of the will, which devised and bequeathed to the executors in trust, for certain purposes, all the personal and real estate of which the testator might “ die seized or possessed.” The appellants contend that the language of the 6th clause creating a residuary estate was intended to include the parcels given to the son, and that the effect thereof was to give him a remainder in fee instead of a fee absolute, or, in other words, that the devises, though,in form absolute, were subject to the trust created by the 6th paragraph for the benefit of the widow during her life or until her remarriage, and that the title to the factory property and the farm would vest absolutely in the son .only upon the death of the, widow or her remarriage. The learned trial judge disposed of this contention adversely, holding that the factory property and the farm devised to the son were not intended by the testator to form a part of his residuary estate, and that the failure to include both in the exception contained in the 6th clause was probably due to inadvertence. We think the view thus taken was right, and that it is unnecessary to add to the reasons given for that conclusion.

The second principal question is as to whether subdivision C of the sixth paragraph of the will contains a direction to the executors and trustees to accumulate and apply a portion of the rents of the real estate, and of the income of the residuum of the personal property, to the payment of the principal of the mortgages on the real property, and if it does, whether such a provision is valid ?

This subdivision, being an essential part of the general plan and scheme of the will, would, if void, necessarily affect, but to what extent we need not decide, not alone the entire sixth paragraph and all dispositions depending thereon, but also the bequest, in the second paragraph of the capital and other property connected with the testator’s business and bequeathed to the son, and also the devises made in his favor by the third paragraph, which are subject to the payment of $2,500 per annum to the widow, unless we were to hold.that the property so bequeathed and the lands so devised to the son were included' in the residuary estate. But we have already said we do not think they were so included. .So, too, the fifth clause, making provision for the widow in lieu of dower, might not be effective if *288 the direction in the sixth paragraph in regard to the payment of mortgages could not be carried out. It is unnecessary for us to determine these questions, which would only arise in the event that subdivision 0 of the sixth paragraph should be held invalid.

The question as to whether a trust can be created for the accumulation of rents or income for the purpose of satisfying mortgages or charges upon real estate is not a new one. It' was presented and disposed of in the recent decision by this court of Becker v. Becker ( 13 App. Div. 342 ) in which' all the cases cited by- the appellants were considered, and some of them referred to; and it was therein . held, as correctly stated in the syllabus, that the trust to apply the rents, issues and profits to the payment of the mortgage upon part of the trust real estate was valid, under subdivision 2 -of section 55 of the Revised Statutes (1 R. S. 728) providing that an express trust may be created “to sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon.” The second department,'in a later decision (Matter of Rogers, 22 App. Div. 429 ), took, seemingly, a contrary view. The question, however, for the present, so far as this court is concerned, must be regarded as settled by the case of Becker v. Becker (supra). We are inclined, however, to think, that in the case at bar the question is not directly presented, and that, considering the language used with a view of carrying out the intention of the testator, there is no provision for accumulation.

Subdivision 0 provides : “ After the payment of the taxes, assessments, repairs, interest on mortgages, insurance, and all charges against my estate, and the payment of the income hereinbefore named to my wife, I direct my said executors and trustees to apply the balance of the net income of my estate to the payment and discharge of any and all incumbrances or liens of any kind upon my property.” This we do not consider as necessarily a provision for accumulation. That a testator can provide for the payment of his debts has never been questioned; and yet what more has the testator here done than to' make provision for the application of the balance of the net income to the payment of his debts and obligations % This purpose can be accomplished without the actual accumulation of the rents or income. The direction is not to accumulate these rents, and. with the accumulations to pay off mortgages, *289 but to apply the net income directly, as soon as received, to the payment and discharge of the incumbrances. If this is done there can never be an accumulation, and we have no right to assume that it could not and will not be done. It is true that the effect of this application of net income will be to enhance the value of the real estate by reducing the charges thereon. But it is lawful to use income for that purpose, provided it can be done without accumulation. The mere act of applying income in that manner does not necessarily provide for an accumulation. .

It is conceded in all the cases that a trust to pay off mortgages on land, out of the rents, issues and profits, was a valid trust under the ' 2d subdivision of section 55 of the Statute of Uses and Trusts. It has been said, however, that this is a provision for alienation, and that the intent of the statute was merely to permit of the leasing for a given term, with payment of the whole rent down at once and in advance. (Hawley v. James, 16 Wend. 275 ; In re Fisher, Estate, 25 N. Y. Supp. 79 .) But it will be perceived that, if the appellant’s argument be sound, this, too, would be invalid, Because the payment of mortgages out of the lump sum would also be an accumulation, that is, if the test of an accumulation is the swelling of the principal of the estate, as, indeed, the appellant claims.

It is evident that the section of the Bevised Statutes as to trusts and the .section as to accumulations involve no such conclusion. The payment of mortgages out of income is not necessarily an accumulation merely because it makes the land more .valuable. If that were so, it is clear that the provision as to accumulation wipes out all trusts to apply the rents, issues and profits of land to the payment of mortgages thereon. That cannot be. The two sections must be read together, and when so read it is apparent that the utilization of the rents, issues and profits of real estate to the payment of mortgages thereupon is not an accumulation of income in the sense in which the latter phrase is used in the other section of the Bevised Statutes. The section of the will in question makes no provision for an accumulation. It certainly makes none directly, and there is neither evidence nor just inference ■ that it will ever have that practical effect. And even if the net income as it accrues cannot be immediately and practically applied to the pay *290 ment of mortgages, it is not an accumulation of such income to apply it by ear-marking it amd setting it apart until a sufficient sum is realized to compel the mortgagee to accept his principal and extinguish the mortgage. This is not, in a just sense, accumulating the income. It is, in reality, applying it as it comes in; it remains in the hands of the executor to the use of the mortgagee; equitably it belongs to the mortgagee ; he may receive it if he will; it is not an accumulation for his benefit; it is retained and set apart as a proportionate part of his principal. The net income as it accrues is not accumulated, but applied at once..

• If we were right in Beeker v. Beekér, in holding that the trust to apply the rents, issues and profits of real estate to the payment • of charges thereon was a valid trust, and that the statute did not restrict the character of the lease nor the nature of the covenants with regard to the payment of the rent, then, whether such rent be paid in a lump sum or in installments, it is lawful to apply either such lump sum or installments to the payment of mortgages upon such real estate, and neither the utilization of the entire lump -sum at once, nor of-.the installments at once, as they come in, effects an accumulation within the meaning of that term as used in the other section of the statute. It will thus he seen that we-have concluded that subdivision 0 of paragraph 6th of the will does not provide for an accumulation of income contrary to the Revised Statutes.

Equally untenable is the contention that the 7th paragraph of the will is invalid because it attempts to create an unlawful trust, in that the beneficiaries are not named; that the term of the trust is not definite, and that the object is not stated. In this argument the appellants lose sight of what was really intended _by the 7th paragraph. The testator had made a disposition of his property, and, in order to carry it out, it was necessary that certain authority and power should be conferred upon his executors and trustees: He undoubtedly sought by that clause to confer such power upon them, and did not intend thereby to create any trust in conflict with the prior provisions of - his will, or to do more than give them authority, as he states, “to sell or lease my real estate * * * -at such time and in such manner and upon such terms as they, in their judgment-, ■shall deem for the interest of my said estate, and to invest the sum ■or sums realized therefrom in real estate first mortgages upon *291 improved real estate in the city of New York, United States bonds or city securities.”

With respect to the premises occupied by the testator at the time of his death, which are admitted to have been No. 49 West Eighty-eighth street, and which by the 5th clause of the will were given to the widow, it is evident that, as this devise was entirely apart from the provision made for her by the 6th clause, and was expressly excepted from the operation thereof, it is to be treated as a separate and distinct piece of property, and that in dealing with it the trustees are to pay to the widow only the net rent of the premises, and that the taxes, assessments and charges, including repairs upon the house, are to be deducted from the gross rent, and are not to be paid out of the income derived from the property bequeathed and devised in the 6th clause of the will.

The other questions presented, as to what property, in the event of the personal estate being insufficient, shall be applicable to the payment of the claims of creditors, and as to the propriety of the payment of the note of $9,750 to the defendant executrix, should be relegated to the Surrogate’s Court, where, upon the accounting or in other proceedings, they can be more properly disposed of than in an action such as this, which was brought for the construction of the will and the partition of the real estate.

The judgment should be affirmed* with costs.

Barrett, Kumsey and Ingraham, JJ., concurred; Van Brunt, P. J., dissented.