In the case of the present plaintiffs against the present defendant and others, (18 Barb. 360,) we decided, after full and careful consideration, that the legacy in question, of David Hyde to the plaintiffs, was v&lid, and Ave must follow that, decision in this case. But it is insisted by the defendant, that admitting the legacy to be valid, the claim made by the plaintiffs against him cannot be supported; and I am of opinion that they are not entitled to recover in this action. An essential position to the validity of the legacy is, that the residuary bequest to Chloe Hyde, to the extent of the amount of the legacy, is of the use only of the subject of the bequest, unless she should have issue living at her death; and another position connected with that, and well sustained by authority,-is that it Avas the duty of the executor of David Hyde to retain of the estate bequeathed during the life of Chloe, the charge of a principal sum equal to the amount of the legacy, and pay over to her'only the interest on the same. In Spear v. Tinkham, (2 Barb. Ch. Rep. 211,) the late chancellor says, “ as a general rule, where there is a bequest of the whole of the *331testator’s personal estate, or of the residue thereof, after payment of debts and legacies, to one person for life, with a remainder over to others after the termination of such life estate therein, the whole must be converted into money, and invested in permanent securities by the executor, and the income paid over to the person entitled to the life estate. (See also Shuler v. Covenhoven, 2 Paige, 122, and cases cited.) The same principle applies where, as in the present case, the bequest is of the whole residue, limited, as to part, upon a contingency, to the use thereof for life, with a valid gift oyer of that part, upon the contingency, and as to the rest, absolute of the entire estate. In such a case, as to the part of the estate to which the contingency relates, the income only can be paid to the residuary legatee, but as to that portion of the estate as to which the bequest is absolute, the principal must be paid. The gift over does not attach to the whole residuary estate, so as to render the whole a security for its payment, but the executor may, as. to the legatee, set apart a principal sum sufficient to discharge the gift, and proceed to satisfy the other legacies. And the residuary, or any other legatee, who has been paid his legacy, will not, in case of a subsequent deficiency of assets to pay the gift, from the waste of the executor, be obliged, for that reason, to refund any part of what he has received. (Wolcott v. Hall, Bro. C. C. 305. Lupton v. Lupton, 2 John. Ch. 614. Story’s Eq. Juris. § 92.) Chloe Hyde was not therefore in her lifetime entitled to demand of the executor of her father, or of the executors of that executor, on account of the legacy to her, any thing further than the balance of the legacy, after deducting a sum sufficient to pay the contingent legacy to the plaintiffs; and the rights of her administrator are no greater than were hers. And in this view of the case, I do not perceive how the defendant can be liable to the plaintiff for the payment of the legacy, without at least an allegation, and proof, that his intestate, or himself) has received more than the intestate was entitled to receive, and of such other circumstances as would clothe him with the character of a trustee for the plaintiffs, as to the excess. But no such case is made by the complaint or the proofs. The ground on which the *332counsel for the plaintiffs rests their right to recover, in relation to the point under consideration, is that Chloe Hyde, on becoming of age, was entitled to the whole fund and its increase, deducting payments made in pursuance of the will, and had the legal, although the executors of Kellogg, the executor of David Hyde, had the actual possession thereof; that she held the same in her own right, subject to a contingent trust in favor of the plaintiffs to the extent .of their legacy; and that the defendant, as administrator of Chloe, is entitled to all the assets of, and responsible for all claims against, her estate, while any assets remain that may become available. It is obvious that it was with this view of the legal rights and obligations- of the parties, the complaint was framed. The errors in this position are fully disclosed in the views already presented.
[Monroe General Term, September 3, 1855.In my opinion the defendant is entitled to judgment on the verdict.
Selden, Johnson and T. R. Strong, Justices.]