In the Matter of the Petition of John M. Ranken and Emma R. Jefferson, Respondents, for the Removal of Michael Donovan and Cartwright McBride, as Executors and Trustees of and under the Will of Bessie C. Donovan, Deceased, Appellants, and to Compel Them to Account

In the Matter of the Petition of John M. Ranken and Emma R. Jefferson, Respondents, for the Removal of Michael Donovan and Cartwright McBride, as Executors and Trustees of and under the Will of Bessie C. Donovan, Deceased, Appellants, and to Compel Them to Account. Will — vohen-it vests the title to accumulations of income at once, postponing only the time of payment or enjoyment. A will devised the testatrix’s residuary real estate to her executors in trust, “ To collect and receive the rents; issues and profits thereof during the minority of my son Henry Ranken Donovan, and during his minority to accumulate the said income and profits thereof over and above what may he necessary to keep the same in repair, and the payment of the taxes, water rates, assessments and insurance thereon, and tó deposit the samé with a good incorporated savings hank in the said City of Brooklyn, and the said rents, issues and profits, and so much of the principal of such moneys as may, in the discretion of my said, executors .or the .survivor to be necessary, he used and applied toward the support, maiutenance and education of my said son Henry Ranken Donovan* and I do hereby direct my said > executors or th.e survivor to* pay over such, moneys from time to time to my mother, Lydia W. Ranken,. guardian of my said son as hereinafter provided,, tolbe used *by 6er toward the support, paintenance and 'education .of iny said son Henry Ranken Donovan- and for no-other purpose whatever; and -upon my said' son Henry RaHken' Donovan reaching the age of twenty-one years. I do hereby give and devise the said" real estate and appurtenances thereunto belonging,- to him my said son Henry Ranken Donovan, together with any surplus income accumulated' therefrom during his minority, absolutely, to have and to hold the samé to hirii, his heirs and assigns forever.” . ■ ■ ■ ' « . Held, that any accumulation of income vested in the testatrix’s son at once, and that only the. time of the payment or enjoyrhent of such, accumulations of income was postponed,until the son attained his- majority. Appeal by Michael Donovan and another, as executors and trustees of and under the last will and testament of Bessie O: Dónovan, deceased, from an order of the Surrogate’s.Court.'of We county of Kings, bearing date the 17th day of November, 1904, and entered in said Surrogate’s Court, directing the said executors and trustees to file an account of their proceedings. The testatrix, by her will, devised her residuary real estate to her executors upon the following trust: “To collect and receive the rents, issues and profits thereof during the minority of my son Henry Ranken Donovan, and during his minority to accumulate the said income and profits thereof over and above what may be necessary to beep the same ¡in repair, and the payment df the taxes, water rates, assessments, and insurance thereon, and to deposit the same with a good incorporated saivings bank in the said City of Brooklyn, and the said rents,' issues and profits, and só much(of .the principal of such moneys as may, in- the discretion of my said' executors or the survivor to- be necessary, be used' and applied toward the support, maintenance and education.óf my said son Henry -Ranken Donovan, and I do hereby direct my said executors or the survivor to pay over such moneys from time to time to my mother,, Lydia W. Ranken, guardian pf my said sort, as hereinafter provided, tb'be used by her toward the support, maintenance .and education of my said son Henry Ranken Donovan, and for no other purpose whatever; and upon my said son Henry Ranken Donovan reaching the age of twenty-one years I do hereby give and devise, the said real estate and appurtenances thereunto belonging, to hito my said_ son 'Henry Ranken Donovan, together with any surplus income accumulated therefrom during his minority, absolutely, to have and to hold the' same to him, his heirs and assigns forever.” G. G. Reynolds, for the appellants. Jesse W. Johnson, for the respondents. [MAJORITY — Jenks, J.:] Jenks, J.: The sole question is whether the accumulations of income vested as they were paid in, or whether vesting was postponed until the majority of the infant. The scheme of the testator was that after the payment of certain fixed charges upon the income, the income, and so much of the principal as might be deemed necessary, should be applied exclusively to the maintenance of the infant, and that when hp attained majority he should take the principal of the estate absolutely. The testator did not intend to create a fund from accumulations of income during this minority, but the provision for the payment of any accumulations was made in view and only in view of the contingency that the income should be more than sufficient for maintenance during minority. I think that the rule of Smith v. Parsons (146 N. Y. 116) must obtain. The sole question in this case was the sole question in that case, and the court say that the precise point then considered had never been passed upon directly by that court. The court held that .the accumulations vested at once, and that only the time of payment or enjoyment was postponed until majority. The essential features of the will construed in Smith v. Parsons and of this will are similar. The scheme of the will in Smith v. Parsons was to collect the interest, and to apply the same, or so much thereof as the trustees deemed necessary, and to accumulate the remainder, and “ upon such child attaining the age of twenty-one years, to pay over all accumulations of such income to such child.” In this case the direction is, “and upon my said son Henry Ranken Donovan reaching the age of twenty-one years I do hereby give and devise the said real estate and appurtenances thereunto belonging, to him my said son Henry Ranken Donovan, together with any surplus income accumulated therefrom during his minority absolutely (sic) to have and to hold the same to him, his heirs and assigns forever.” •• I can see no substantial difference between these directions as .to the disposition of any surplus or accumulation, of income. It is insisted that the use of the word “ upon,” followed by a direction to convey, indicates a postponement of the vesting. But the authorities cited deal with the principal and not the.income. In this case the income is not regarded as a fund, but as it is paid in it is to be used entirely if necessary, and the direction as to the sur' plus relates merely to li/any surplus income accumulated,” i. e., in the event of there being such accumulation. In Smith v. Parsons (supra)- the direction:was “upon”- such child attaining the- age Of t-wenty-one years. If we. were considering a fund or a principal, strong if not prevailing light would be.cast upon the intent by the-provision that authorized the .application thereof to the use of the infant during his minority. - Thus, in Everitt v. Everitt (29 N. Y. 39) the court- say (p¿ 76): “ That he considered that the estate would be theirs from the. time of his- death is >evinced by tile provision allowing the whole income and such parts of the capital as might be necessary to. be expended in their education and support, and in the direction for the advancement of portions to two of-them,xand of outfits to any of them-in case of marriage while under age, out- of their respective shares. These- directions would oblige us to hold that the legacies were vested interests, if the words of direct gift had not been inserted. (Paterson v. Ellis, 11 Wend. 260.) ” Each party lays stress Upon the word “ absolutely.” ■ The respondents insist that it contradicts any intent of present ■ vesting; the appellants, that it imports a previous title., I think that-it-loses much of its force as to the accumulations of income from the fact that it is used in -a sentence whose primary purpose is ■ to devise the real estate—■ the principal -— and the provision for such accumulations is a subordinate and almost a parenthetical clause thereof, It is said in Smith v. Parsons (supra) that it will be assumed that the testator did not intend to die intestate as to any portion-of his estate. I think that the scheme of this will reveals that the testator did-not so intend. For she makes specific- provision -for all of -her estate^ unless we .hold that she intended that any -accumulations-o-f income should not vest as they were paid in. These specific provisions moreover absolutely exclude those who would take any accumulations if the vesting thereof were thus postponed. I think that the order should be reversed, with costs. Hirsohberg, P. J., Bartlett, Woodward and Hooker, 33., •concurred. Order of the Surrogate’s Court of Kings county reversed, with costs, and proceedings dismissed.