By the 6th clause of his will Lorillard Spencer, 2d, provided, among other things, as follows:
*55“ Sixth. All the rest, residue and remainder of my estate of every nature and kind, whether real, personal or mixed, and wheresoever situated, which I have or may have, or of which I may die possessed, and whether in possession, reversion or remainder, so far as I have power to dispose of the ..same by will, I give, devise and bequeath to my said Trustees hereinafter named, their survivors or survivor, successors or successor, in trust, however, for the following purposes: To invest and re-invest the funds of said trust estate and to change the investments thereof according to their or his best skill and. judgment in the way and manner hereinafter provided; to collect and receive the rents, dividends, interest and income thereof and to pay over to my said wife, Caroline S. Spencer, during her life, the net annual income in quarterly installments.”
Among other property deceased left a one-third interest in a tract of land situated at Williamsbridge, borough of The Bronx, city of New York, which had come to him through inheritance and which had been in his family for many years. As to this one-third interest he directed by the 3d clause of his will that if the farm was not sold by the executors of his brother Charles before July 28, 1911, the proceeds of the testator’s interest in said farm should be divided as follows: If he sold his entire interest in the farm previous to his death he bequeathed to his son, Lorillard Spencer, Jr., the sum of $100,000; or, if he only sold a portion thereof before his death, then a sum equal to twenty-five per cent of the net proceeds of the sale. If, after the testator’s death, the whole of his interest in the farm or any part thereof was sold by his executors, then he gave and bequeathed to his son, Lorillard Spencer, Jr., a sum equal to twenty-five per cent of the net amount realized on the sale. If the son should die before him, or if, at the time of his death, the whole or any part of the farm should remain unsold, then he gave to his daughter-in-law, Mary R. Spencer, the same share in the proceeds of said property which his son would have received if living. No disposition was made of the remainder of his one-third interest in the said farm or the proceeds of sale thereof, or any interest therein over and above the amount so bequeathed to his son. The personal property turned over to the trustees amounted to $156,802.50 in securities and cash, sub*56sequently increased. The testator held other real estate as well as the Williamsbridge farm. The complaint set forth that all of the real estate owned by the testator was held by the trustees as part of the residuary estate and that allegation was admitted by the answer of the appellant, although she subsequently sought leave to amend the same. The Williamsbridge farm is unproductive, and the taxes thereon have been paid by the trustees out of the income of the residuary estate. The appellant claims that the taxes. and carrying charges should not be paid out of the income of the estate, but that she should receive her share thereof without deduction. It is a settled rule that annual taxes and carrying charges must be borne by the person having a life interest in the property unless there is an unmistakable direction to the contrary in the instrument creating the various estates therein.. (Pinckney v. Pinckney, 1 Bradf. 269; Booth v. Ammerman, 4 id. 129; Matter of Albertson, 113 N. Y. 434; Woodward v. James, 115 id. 346; Chamberlin v. Gleason, 163 id. 214; Matter of Tracy, 179 id. 501.) It is to be noted that the income which is to be paid over to the testator’s widow is “the net annual income.” There is nothing in this will from which can be spelled out any intention upon the part of the testator that the carrying charges upon this property should be paid out of the principal of his estate or that it should not be deducted from the income. To insert such a provision in the testator’s will would, it seems to me, be making a will for him and would not be construing the will which is actually made. I, therefore, think the judgment appealed from should be affirmed, with costs.
McLaughlin and Hotchkiss, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.