John Cocks, by his will, made a provision for his wife as follows: He directed his executors “to invest such sums of my property as will net one thousand dollars, over and above all taxes and assessments per year, upon bond and mortgage upon real estate in the county of Westchester, within three months after my decease; and from such sums so invested pay to my beloved wife, Adelia Cocks, the sum of one thousand dollars per year, and to be paid to her by said executors semi-annually so long as she shall remain my widow, unmarried, and no longer; and this provision for my said wife is in lieu of dower.” Although the estate was amply sufficient to provide a fund for the above annuity if measures to that effect had been taken, it was not done, but the residuary legatees, who are all named as executors, and who had all qualified, divided almost the entire estate, which was large, among themselves. They made fitful and uncertain payments upon the annuity for some time, and then the payments altogether ceased. The amount now due the widow for back annuities is $10,175.25, and the estate left is, of principal, $4,354.70. The decree directs the payment of the interest in the remaining executors’ hands to be paid to the petitioner, and the principal sum to be invested, and the interest on that only to be paid to the widow in lieu of her $1,000 annuity. This is a hard result, and I think one not supported by the cases. It is a well-settled rule that where a legacy or annuity is payable solely out of the income, and the fund fails to produce the sum required, the legacy abates in proportion to the loss of capital or fund. This rule is not one that is universally applicable to all annuities given to be paid out of income. If, from the will, an intention can be discovered that the legacy shall be paid at all events, the intention will not be permitted to be overruled by the direction that the annuity is to be raised out of a particular fund. The case of Pierrepont v. Edwards, 25 N. Y. 128, is a case very much like the present one. Á testator gave an annuity payable “out of the income of my estate. ” The property was so unproductive that the income was not equal to the charge upon i't, although. the estate had productive property to a considerable amount. The court of appeals held that the legacy was payable to the wife out of the principal of the estate, because otherwise the wife would get nothing, and the residuary legatees were alone benefited. The executors were held to be bound to produce an annuity, or in some other way to secure the payment of the annuity. The present case seems much stronger in favor
As to when a legacy is held to he a charge, see Smith v. Smith, ante, 393, and note. *905of the widow. She accepted the annuity in lieu of dower, and the testator owed the annuity as purchase money. 2 Redf. Wills, 747. In the next place, the executors have failed to set apart a fund to raise the annuity, but have distributed a very large part ($85,000) of the estate among themselves. It is manifest that the testator intended to charge this annuity upon the entire estate until the fund was set apart. If the executors, who were the residuary heirs, can reduce the estate by division among themselves, and fail to set apart the fund, thus reducing the annuity to about $200, the result is in every way inequitable. The decree of the surrogate should be modified so as to direct the payment of the entire residue to the widow, on account of her annuity, with costs to the appellant of this decree.
Pratt, J., concurs.