FIENCY OF THE FUND DOES NOT MAKE THE TRUST INVALID. See Matter
of McDowell.
551

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(7.) WILL TRUST FOR LIFE WITH REMAINDER OVER DIRECTION THAT
STOCK DIVIDENDS BE UNLAWFULLY ACCUMULATED · WHEN STOCK DIVI-
DENDS REPRESENTING INCOME GO TO LIFE BENEFICIARY - - DISPOSITION OF
DIVIDENDS REPRESENTING CAPITAL, See Matter of Megrue.......
85

(8.) DECFDENT'S ESTATE EXECUTION BY LEGATEES OF TRUST DEEDS AS
SECURITY FOR PAYMENT OF BONDS - DISTRIBUTION OF ESTATE UNDER SEC-
TION 2744 of the Code of CIVIL PROCEDURE — METHOD OF PAYMENT OF
TRUSTEES WITH WHOM INTEREST IN ESTATE HAD BEEN PLEDGED. See
Matter of Titus.
90

(9.) TRUSTEES - ACCOUNT OF TESTAMENTARY - WHEN MOTION TO PUNISH
DECRETAL DEBTOR FOR CONTEMPT GRANTED.

Where a decree entered on the judicial settlement of the account of a
testamentary trustee directs payments to separate persons not united in
interest, a motion by one of them to punish the decretal debtor as for a
contempt for disobedience of the directions for payments contained in
the decree may be granted, but only to the extent of a fine in a sum
representing the amount payable under the decree to the moving party.
Matter of Ball. .......

... 315

(10.) TRUST — WILL INVESTMENT BY TRUSTEES - LOAN TO PARTNERSHIP.
See Matter of Reid..

73

(11.) WILL-TRUST-INCOME FROM LEASEHOLD — DISTRIBUTION OF PRO-
CEEDS OF SALE OF LEASEHOLD. See Frankel v. The Farmers' Loan and
Trust Co..
143

WILLS.

(1) PRESUMPTION THAT WILL OF PERSONAL PROPERTY SPEAKS OF THE TIME
OF DEATH OF TESTATOR — SUCH PRESUMPTION MAY BE REBUTTED IF NATURE
OF PROPERTY BEQUEATHED AND TESTATOR'S LANGUAGE INDICATE THAT HE
INTENDED THE WILL TO SPEAK AS OF THE TIME OF ITS MAKING-FACTS
EXAMINED, AND HELD INSUFFICIENT TO REBUT SUCH PRESUMPTION. See
Matter of Gallagher...
530

(2) Wills-EXECUTION OF-CONTESTED PROBATE PROCEEDING — WHEN
BILL OF PARTICULARS DENIED — EXERCISE OF UNDUE INFLUENCE.

In a contested probate proceeding an application for a bill of par-
ticulars which must state the names of the persons who, as alleged by

contestant, exercised undue influence on testator in the matter of the
execution of the will, will be denied. Matter of Vetter..

(3.) SAME
STIRPES.

438

DIRECTIONS CONTAINED IN DIVISION AMONG

66

ISSUE PER

-

Where a will directs that upon the death of testator's son, the life
beneficiary of the income of her residuary estate, the estate in remainder
shall be divided among his "issue" per stirpes, it must be held that it
was the intention of testatrix that the issue of any of the children of
her son who predeceased him should take their parent's share, as had
testatrix intended to limit the distribution of the remainder to the chil-
dren of her son who survived until the time of distribution it was rea-
sonable to assume that she would have used the word "children" instead
of "issue" and there would have been no occasion for the use of "
per
stirpes.". Matter of Wienholz...
263

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(4.) BEQUESTS OF GOVERNMENT BONDS AND BANK
SECURITIES ACCRUED SINCE DEATH OF TESTATRIX.

STOCK -INCOME OF

A bequest of all government bonds and bank stock of which testatrix
might die possessed carries with it all the income of such securities
accrued since the death of testatrix. Matter of Franklin Trust Co..

-

446

(5.) WILLS - - CONSTRUCTION OF DEVISE OF REAL ESTATE IN TRUST
PROVISIONS FOR DISPOSITION OF INCOME AS WELL AS CORPUS OF REAL ESTATE
AFTER DEATH OF LIFE TENANT DEFERRED CODE CIV. PRO., § 2615. See

Matter of Klumpf.

-

(6.) WILL CONSTRUCTION CONTINGENT REMAINDER
TION TO CONVERT REALTY INTO PERSONALITY "HEIRS."
Finck.

-

LEGACY RESIDUARY ESTATE
§ 2615.

Where executors allege that it is impossible for them to pay any of
the general legacies until it is determined whether they are a charge
upon the real estate, the surrogate will entertain an application under
section 2615 of the Code of Civil Procedure for a construction of the will.
Where at the making of her will by one who had no immediate rela-
tives and no one she would be under obligation to support the difference
between the value of her personal property and the value of the pecuniary
legacies bequeathed by her was so great as to render reasonably certain
the conclusion that she then knew that her personal property was in-
sufficient to pay the legacies. and she devises her real estate to her

executors in trust to sell and divide the proceeds and the entire residuary
estate into two equal shares one of which was given to a charitable
corporation and the other to a friend, it will be held that it was the
intention of testatrix that the general legacies should, so far as necessary,
be paid out of the proceeds realized from the sale of the real estate of
which she died seized. Matter of Noe...
270

(8.) SAME- PROVISIONS OF

-

SPECIFIC LEGACIES MORTGAGES — WHEN
SPECIFIC LEGATEES ARE ENTITLED TO INTEREST FROM DATE OF DECEDENT'S
DEATH.

A will duly admitted to probate contained the following provision:
"Thirteenth. I gave and bequeath the mortgage now held by me on
premises East 17th Street, Borough of Manhattan, City of New York,
on which there is now unpaid the sum of Forty-five thousand ($45,000)
Dollars, to my daughters Lena Smith and Elizabeth Ochse, absolutely,
in equal shares, and share alike." Interest had accrued upon this mort-
gage at the date of the decedent's death, and the question was as to the
method of the distribution of the interest which accrued between the
interest date prior and that subsequent to the death of the decedent.

Held, that the legacy of the mortgage was a specific legacy and that
the specific legatees are entitled to interest from the date of the dece-
dent's death instead of from a date one year thereafter; that if a legacy
is expressed in an amount, even though that amount be payable out of
a sum secured by a bond and mortgage or evidenced by some other
security, the accrued interest does not pass, but if the security itself is
bequeathed the specific legatee is entitled to such interest; and that the
specific legacy of the mortgage mentioned accordingly carried with it
the unpaid interest that accrued prior to decedent's death as well as
that which accrued thereafter. Matter of Althus..

252

(9.) WILL CONSTRUED DEVISE IN TRUST WITH CONTINGENT REMAINDER IF
BENEFICIARY DIE WITHOUT ISSUE — DISPOSITION OF INCOME WHILE CON-
TINGENCY EXISTS.

The will of a testatrix gave her property to her executors in trust to
use the income and principal, if necessary, for the education and mainte-
nance of her two sons during their minority, and in the meantime
directed the accumulation of the surplus income. When the sons
respectively attained the age of twenty-one she directed that the income
thereafter arising be paid to them in equal shares. The next paragraph
provided that when the sons arrive at the age of twenty-five one-eighth
of her estate then remaining should be paid to each child absolutely.
Then provision was made for the further payment of another one-eighth
to each child upon his arrival at the age of thirty.
The 5th para-

graph provided that "After such division shall have been made, I then

direct my said executors and trustees to pay over to my said sons, the
income arising from the balance of my estate, during the term of their
natural lives, and in case of the death of either, without leaving lawful
issue, the whole income to go to the survivor, but upon the death of
either leaving lawful issue, then I give
to the issue of such

child the undivided one-half part of my estate then remaining." It was
further provided that "in case of the death of both of said children
before arriving at the age of twenty-one years or after arriving at said
age without leaving lawful issue, the I give
unto their rela-
tives, on their father's side, the property then remaining." The next
paragraph empowered the trustees "to transfer and turn over unto my
said sons in equal shares the whole of my said estate then remaining,
or to either son a one-half part thereof, to be his absolutely, at any time
after they shall arrive at the age of thirty years, and in the judgment of
my said executors it would be for the best interest of said child or chil-
dren to make such disposition thereof." The younger son died during
his minority without issue, and without receiving any portion of the
corpus.
The other son survives and being over thirty years of age
claims his brother's share.

Held, that if the surviving son should also die without issue, the
father's relatives would take, so that there is an outstanding remainder
in them which prevents payment to the surviving son; that in the mean-
time the trustee holds the property to pay the income to said son and
to pay the corpus to the father's relatives if the said contingency should
happen. Matter of Fraser....
1

Where a testatrix directed that the remainder of her estate be divided
into as many shares as she might have children living at her death;
that one of such shares be given to each of her children surviving at
the time of her death, and that in case any of her children should die
before her leaving lawful issue surviving, then such issue should take
the share the parent would have taken if living, and further provided
that the share of the son be placed in trust for his life, with remainder
to his lawful issue, if any; if not, then such share should be given to
her children living at the time of the death of said son, and the issue of
any of her children who may have died before the death of the son,
the children of a son who died before the testatrix are entitled to take
under the will. Lightfoot v. Kane...
46

(11.) WILLS PROVISIONS OF WHO ENTITLED TO SHARE IN RESIDUARY
ESTATE VESTING.

Where by the will of a testator who left him surviving no descendant
his residuary estate was given in equal shares to such of the grand-

children of two deceased uncles, naming them, as should survive testa-
tor, one grandchild of each uncle, otherwise provided for by the will,
being expressly excluded from sharing in the residuary estate, the chil-
dren of any of the grandchildren of either of said uncles are not entitled
to share in the residuary estate, but the next of kin of a grandchild of
one of the uncles, who survived testator, are entitled to take the share
which vested in their mother upon the death of testator. Matter of
Rowe...
227

(12.) WILL CONSTRUED

PROVISION THAT THE SHARE OF DEVISEE WHO DIES
BEFORE TESTATOR SHALL GO ΤΟ SURVIVING BROTHERS - PRESUMPTION
AGAINST INTENTION TO CREATE INTESTACY. See Kearney v. Kearney.

(13.) WILL CONSTRUCTION.

79

A testatrix in one paragraph of her will gave to each of the surviving
sons (Frank and William) of her brother $1,000, to be paid from her
personal estate or from rentals of her real estate, and in said paragraph
directs how the legacy to Frank is to be paid. In the next paragraph of
her will she gave $1,000 in trust for the support and maintenance of
William. Provisions of the will construed, and

Held, that the testatrix intended that the legacy given to William by
the first paragraph should be held in trust for him under the next para-
graph, and that he should not receive $1,000 and an additional $1,000
in trust under the second paragraph. Matter of Baker...

-

149

(14.) SAME CONSTRUCTION OF EXECUTION OF- WHEN EXTRINSIC EVI-
- WHEN LAPSE AVOIDED.

DENCE ADMISSIBLE

-

In the absence of proof of actual survivorship there is at common law
no presumption of survivorship or simultaneous death where persons
perish in a common disaster. Matter of Fowles.....

(15.) SAME.

425

Extrinsic evidence is inadmissible in the construction of wills except
in three specific instances: (1) latent ambiguity; (2) to rebut a result-
ing trust, and (3) a patent ambiguity susceptible of resolution
thereby. Id.

(16.) SAME.

Extrinsic evidence of the circumstances surrounding a testator at the
time of the execution of his will is inadmissible where the instrument
is clear and free from equivocation.

(17.) SAME.

Id.

A testator's direction to a court to reverse a rule of law is contrary
to public order. Id.