In Re the Judicial Settlement of the Account of Crossman

Earl, J. It was held by the surrogate, and upon appeal by the Supreme Court, that Henry C. Crossman took a vested remainder in the $100,000 which the executors were directed to set apart and hold for the benefit of the widow during her life, and that he took it by virtue of the language contained in the third clause of the will; that, therefore, the testator did not die intestate as to any portion of his estate, and that Ms next of kin were not entitled to any hearing upon the accounting. Without determining whether or not the courts below were right in their construction of the third clause of the will, we have no reason to doubt that Henry C. Crossman took a vested interest in remainder in the $100,000 under the residuary clause. It is clear that the testator did not intend to die intestate as to any portion of his estate He had taken particular care as to the dispositions made in the prior clauses of the will, and it is true that in several of them he provided distinctly that in certain contingencies the gifts should become part of his residuary estate, and that he made no such provision in reference to the $100,000. But we do not deem that circumstance of much importance. The language of the residuary clause is sweeping and unqualified, and in that he gives, devises and bequeaths to Henry C. Crossman all the rest, residue and remainder “ of his estate, real and personal, wheresoever and whatsoever ” and what he should thereafter acquire. Ho language could be broader and more comprehensive, and whatever was not included in the prior provisions and effectually disposed of, is carried under this residuary clause to Henry C. Crossman. He was a general residuary legatee, and therefore, as said in 2 Roper on Legacies (453), “ he is entitled to not only what remains after paying all debts and legacies, but also to whatever may by lapse, invalid disposition, or other casualty, fall into the residue after the date and making of the will.” And the case is governed by the rule laid down by the chancellor in King v. Strong (9 Paige, 94) as follows: “It is *510 settled that a general residuary bequest of personal property, or of chattels real, carries to the residuary legatee, not only such estate and such interest therein as the testator did not attempt to dispose of by other provisions of his will, but every part of his property which, by lapse or otherwise, is not effectually bequeathed and disposed of to others.” We see nothing in the other provisions of the will to qualify the éffect to be given to the general provisions of the residuary clause. It is clear that the testator meant to dispose of all his property, and that he intended by the residuary clause to give to Henry C. Cross-man what had not before been effectually disposed of. (In re Benson, 96 N. Y. 499; Cruikshank v. Home of the Friendless, recently decided in this court.) * In this case the residuary estate was large, and no direction was given in the will for the disposition of the income thereof until Henry C. Grossman reached the age of twenty-eight years; and the next of kin of the testator, therefore, claim that such income was undisposed of and that they were entitled to the same. We think the disposition of the income is controlled by the provisions of the Revised Statutes (1 R. S. 726, § 40), which provides that “ When, in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation or of the ownership during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is tgiven, such rents.and profits shall belong to the person presumptively entitled to the next eventual estate.” There was no direction whatever for the accumulation of the income. That was undisposed of, and Henry C. Crossman was presumptively entitled.to the next eventual estate, and it was, therefore, payable to him as it accrued after the death of the testator. (Gilman v. Reddington, 24 N. Y. 9; Manice v. Manice, 43 id. 303; Radley v. Kuhn, 97 id. 26.) The provision of the Revised Statutes strictly applies only to the rents and profits of real estate. But, by analogy, the same rule should, probably, be aj)plied to the income of personal estate. But, so far *511 as the residuary estate was personal, its income belonged to Henry C. Grossman as the owner of the corpus thereof, and, not being otherwise disposed of, was payable to him as it accrued. It would seem to be a reasonable rule that such an owner should have the income of his own property. We are, therefore, of opinion that the judgment should be affirmed, with costs. All concur. Judgment affirmed. Footnotes [*] Ante-, p. 337.