In re the Estate of Meiners

S. Samuel Di Falco, S. In this trustees’ accounting the court holds that the remainder of the trust principal in the hands of the surviving trustee passed outright on the death of the income beneficiary to Viola N. Hanabergh, as the only surviving child of testator’s daughter Emma. The gift over is a direction to pay “ the said income and interest ” with no limit of time specified for the duration of the payments and no other disposition of the principal. Even if we consider ‘1 the said income and interest ” to mean income and not principal, such a general gift of income making no mention of the principal has been held to be a general gift of the property itself. (Matter of Sackett, 201 App. Div. 58, citing Matter of Allen, 111 Misc. 93, 125; Matter of Goldmark, 186 App. Div. 447; Hatch v. Bassett, 52 N. Y. 359; Locke v. Farmers Loan & Trust Co., 140 N. Y. 135; Tabernacle Church v. Fifth Ave. Church, 60 App. Div. 327; Matter of Dibble, 76 Misc. 413.) Further, a reading of the will indicates a use of the words “ income and interest ” interchangeably for both income and principal. In the first clause of the will, the testator directed the executors to divide the ‘1 interest and income ’ ’ into two equal portions. He then gave one equal portion of said ‘ ‘ interest and income ’ ’ to Emma for life and after her death he gave “ such equal portion ” which could only refer to “ interest and income ” to her children. The prior accounting shows that the principal of one half of the estate was paid to Emma’s children and such disposition was acquiesced in by all parties as no objection was filed to such disposition. The practical construction placed on the clause by the parties in the prior accounting may be considered by the court. Further, in clause Third, it is provided that if at the death of decedent’s daughters, any children of Emma should be minors, the share of such minor is to be held for him ‘ ‘ until he becomes of age.” The inference would follow that he would [42] receive the remainder outright when he becomes of age or as here if he is already of age. The same clause also refers to the contingency that any of the children of Emma might die “ before receiving his or her portion.” The word “ portion ” is more appropriate to principal and was so used in clause “first.” The fee of the attorneys for the petitioner is fixed and allowed in the sum of $1,000. Submit decree on notice settling account accordingly.