Ivory v. Klein

The Ordinary. In the case of Mosley v. Marshall, 22 N. Y. 200, Judge Denio stated the principle which governs the solution of the question presented, in these words: “ It is a well-established principle that where there is an estate for life and a remainder in feej and there exists an encumbrance, binding the whole estate in the land, and no special equities between the remainderman and the tenant for life can be shown, the latter is bound to pay the interest accruing during the continuance of his estate, and the owner of the future estate is to pay off the principal of the lien.” In that case the crucial question was, as it is in the case considered, whether the will evinced an intention that the interest upon the mortgage should not be charged to the life tenants, and thus gave a right against the remaindermen. In the case considered, testator had two children by his first [383] wife, both of full age and emancipated from his control and care, and two children by his second wife, both of whom were under age, and yet needed education and his maintenance. The scheme of the will was that the testator’s widow, the mother of his infant, dependent children, should take his dwelling on Hanover street, with its furniture, in fee, in lieu of her dower, and in addition thereto should have the income from his $3,400 mortgage for her life; that the State street property should satisfy his debts, including the mortgages on all his properties ; and that the net income of the Greene street property should be devoted to the education and maintenance of his infant children until the youngest should become of age, and, to the end that, through a community of interest, the mother’s home and care might be secured for them; she also, during the minority, was to have the.benefit of this providence. The other children had passed their minority, presumably having had his care and assistance. If there should be a surplus in value of the State street property, above the payment of debts, those older children were to take that surplus immediately. "When the majority of the youngest surviving child should be reached, that surplus and the proceeds of a sale then to be had of the Greene street property would together be reckoned as a fund for division among the four children, in order to determine how much of the proceeds of the sale of the Greene street property, then in hand to be divided, each would have, the two older children’s share being credited with their receipt, if any, from the proceeds of the State street property. It was the testator’s intention to create three funds — one for the payment of his debts, with a possible surplus for his children, one for his widow in lieu of her dower, and a third to yield support and education for his infant children and their mother in care of them, during their minority, and, in corpus, be preserved for ultimate division among all his. children. He was uncertain as to the sufficiency of the first of these funds. It might be more than enough to pay his debts, and, in that event, he disposed of the surplus of it; yet it might not be enough to pay the debts, and, therefore, he specified a preference of debts to [384] which it should be applied. But, while he established such preference of debts, he failed to specially provide for the disposition of any balance of the fund there might be after payment of the preferred debts, which might be insufficient to fully satisfy the remaining debts, or to provide how those remaining debts should be satisfied. Passing from this fund and that designed for the widow, he creates the third. He put it in trust for years, specifying three purposes to which its income should be devoted— (a) payment for repairs to the property constituting it; (b) payment of taxes and assessments levied on that property, and (c) the support and education of his wife and infant children. A surplus of income was not contemplated. That he expected to realize enough from the sale of the State street property to pay all his debts is indicated by his provision for the disposition of a balance of proceeds of such sale after their payment. It is true that he also contemplated that the proceeds of such sale might not be sufficient to pay his debts. Such contemplation is evidenced by his preference of debts in such contingency. But that such contemplation was regarded by him as a mere possibility, I think, is clearly demonstrated by his neglect to pursue the event of such contingency by specific direction, either concerning the application of any balance there might be of proceeds of sale after the payment of the preferred debts, or concerning the payment of such debts as should not be satisfied, together with the interest thereon. Wow, it is argued by the respondent that the enumeration in the will of charges upon the income of the Greene street property, for repairs, taxes and assessments, and the support of the widow and younger children, indicate a purpose to exclude any charge upon that income for interest on the mortgage upon that property, or, at least, to postpone it to the full accomplishment of the three purposes expressed. If the will exhibited that the testator had it in mind, that question as to the charge of interest on the mortgage would probably arise, I would, perhaps, because of the importance of specific direction as to the payment of interest, attach greater weight to this argument; but I think that the will evinces that the testator regarded, in the first place, that [385] the insufficiency of the proceeds of the sale of the State street property to pay all his debts was a possibility only, and, in the second place, that his preferment of the unsecured debts made adequate provision for such contingency by leaving his mortgages a charge upon the properties respectively burdened by them. In view of the whole situation, I do not perceive more reason for holding that the testator’s specification of some charges upon the income of the Greene street property excludes all other charges, thán I do for holding that the testator intended in that specification, but failed, to mention all charges that were necessary to fully protect the corpus. It appears to me that his object was to devote the net income of a portion of his estate to the assistance of his second family while such assistance should be most needed, and, at the same time, to preserve the corpus for equal distribution among all his children beyond that period, and not to permit a sacrifice of it, and with it a sacrifice of the interests of his elder children, to produce a larger temporary income. I conclude, therefore, that the will does not signify an intention to give any right to the life tenants which justifies a charge of the interest in question upon the corpus. The decree of the orphans court will be reversed for correction in this particular, otherwise it was rightly made.