(dissenting). In my opinion, the Surrogate’s decree should be modified so as to direct the executors to pay over to the income beneficiaries, from principal, sums equal to the undistributed earnings of the realty partnerships or syndicates in which the estate is interested, which earnings were retained by the said partnerships or syndicates for depreciation reserves and mortgage amortization payments.
Certain realty partnerships or syndicates, in which this estate has an interest, have retained from current income funds which they intend to use for depreciation reserves and *507mortgage amortization payments; and they have not paid over to the estate its prorata share of the funds so retained. Since the retention of those sums has to that extent decreased the income now payable to the income beneficiaries of this estate, the executors requested permission now to withdraw an equivalent sum from principal and pay it over to the income beneficiaries.- This application was opposed by the special guardians of certain infants. The learned Surrogate denied the executors’ request on the ground that it was premature unless and until the partnerships or syndicates actually paid over those sums to the executors or trustees.
In my opinion, this determination was erroneous and the executors’ request should have been granted. It is well settled that mortgage amortization payments and depreciation, reserves are chargeable to principal, not income (Matter of Chapman, 32 Misc. 187, affd. 59 App. Div. 624, affd. 167 N. Y. 619; Matter of Davies, 197 Misc. 827, affd. 277 App. Div. 1021; Matter of Danziger, 58 N. Y. S. 2d 790, mod. on other grounds 271 App. Div. 888; Matter of Edgar, 157 Misc. 10). The retention of income for these purposes by the partnerships or syndicates thus improperly increases the principal of this estate at the expense of the income which rightfully belongs to the income beneficiaries. If the income beneficiaries are compelled to wait for these moneys until and if they are paid over to the estate by the partnerships or -syndicates (as the Surrogate decreed), they probably will never receive them during their lifetimes, since the mortgage amortization payments will have been made and the depreciation reserves set up and maintained on the partnership books. Hence, what will undoubtedly happen here, if the Surrogate’s decree stands, is that upon the termination of the trust estates (by reason of the death of the income beneficiaries) the trust principals will be turned over to the remaindermen, and at that time the estates of the income beneficiaries will be entitled to recoup from principal the sums now being withheld by. the partnerships or syndicates for mortgage amortization and depreciation.
In short, the income beneficiaries are entitled to the income being retained by the partnerships or syndicates for the above-stated purposes, and sooner or later they or their heirs will get those sums. In my view, it is unfair to the income beneficiaries to deprive them of these moneys during their lifetimes, and to delay their receipt of them until such time as only their heirs can reap the benefit. Nor can the internal bookeeping procedures of managerial agents deprive these income beneficiaries of their vested rights. And, under the holdings in
*508Chapman, Davies, Danziger and Edgar {supra), it is improper to deny them the payment of these moneys now, since these moneys are now being so used as to effect a present accretion to principal. Neither on equitable nor on legal grounds do I see any reason here to disregard the plain rule of those cases.
Accordingly, I dissent in part and vote to modify the decree as indicated above.
Brennan, Acting P. J., Rabin and Mundeb, JJ., concur with Hopkins, J.; Benjamin, J., dissents in part, with opinion.
Decree affirmed insofar as appealed from, without costs.