In re Tietjen — 7 N.Y. St. Rep. 724

Majority

p. 724

Estate of John J. Tietjen, Deceased.

(Surrogate’s Court, New York County,

Filed December 23, 1886

Headnote

Life-tenant—What principal and what interest.

The testator, by his will gave all his estate, real and personal, to his executors in trust to collect the rents, etc , and after directing as to the investment of the principal directs them to apply the rent, income, interest, etc., to the use of his wife during her life. Upon her death the entire estate is given in remainder to such of the children of the testator as shall be then living. In 1880 the executors recovered a judgment for the sum of $2,600, upon which the judgment-debtor from time to time paid in varying amounts the sum of $560; no one of the payments having been in excess of the amount due as interest on the judgment Held that the wife was only entitled to the interest on the $560 until the entire judgment was paid. The moneys so paid must be deemed as between the testator’s widow and children to be corpus and not income.

By the second clause of his will, this testator gives all his estate, real and personal, to his executors in trust, to collect the rents of the realty, and to invest, and keep invested, the personal estates in bonds and mortgages, or in stocks or bonds of the city or state of New York, or of the government óf the United States; to collect the interest and dividends thereon, and to apply the rents, income, interest, etc., to the use of his wife during her life. Upon her death the entire estate is given in remainder to such of the children of the testator as shall be then living.

In September, 1880, the executors recovered a judgment in supreme court against one Lichten for the sum of $2,600 and upwards. Lichten has, from time to time, at irregular intervals, and in varying amounts, paid on this

p. 725

judgment the sum of $560. No one of the payments has been in excess of the amount due as interest on the judgment.

An application is now made in behalf of the widow, that the executors be directed to turn over to her the aforesaid sum of $560, as interest and income to which she is entitled under the will It appears by the affidavit of one of the executors that an execution issued on the judgment in question soon after its recovery, was returned unsatisfied; that several sums amounting in all to the $560, subsequently paid by the judgment debtor, were paid without any direction as to their application to the discharge of his indebtedness. The respondent insists that the entire amount must be treated as principal to be invested, and that the petitioner is only entitled to the income thereon.

It does not appear that an execution issued against Lichten would be of any more avail now than was that which was returned unsatisfied in 1880; and if Lichten should die to-day, the $560 he has already paid would represent the entire interest of the cestuis que trustent for life and of the remaindermen in the avails of the judgment against him.

It seems to me, therefore, that even if counsel for the' petitioner is correct in claiming that as between Litchten and this estate the moneys he has paid should be deemed to have been paid as interest and not in reduction of the principal, nevertheless they must be deemed as between the testator’s widow and children to be corpus and not income.

It was doubtless the intention of the testator that his children should enjoy, at their mother’s death, whatever she had herself enjoyed theretofore; and if, while she is yet alive, Litchten shall discharge his indebtedness to the estate, an occasion will arise for some readjustment of the respective interests to herself and her children in the proceeds of this judgment.

At present her petition must be wholly denied.