This is a controversy submitted without action, for the determination of certain questions arising from the provisions of the will of Eli Merrill, deceased.
There is in the hands of the executrixes, an accumulation of surplus rents of realty, which accumulation the will does not in terms dispose of. It is now claimed on behalf of the plaintiffs, that these rents follow the disposition, made by the will, of the residuary estate, and. that this residuary estate goes, on the death of the widow, to certain persons named in the will, and that they are entitled to immediate distribution of such rents. The widow is still living. After her death, the will provides that the estate shall be sold, or divided in the- proportions hereinafter specified, as a majority of the executors and pecuniary legatees may then agree and- determine; and such division of the estate or distribution of the proceeds to be made as follows:
$10,000, or the value thereof, to Eliza L. Thayer, a niece;
5.000, or the value thereof, to an adopted daughter;
5.000, or the value thereof, to a niece;
500, or the value thereof to a niece; and
500, or the value thereof, to another niece.
An estate of the value of $21,000, will therefore be required, on the death of the widow, to satisfy these provisions.
The undisposed residue or proceeds of the estate, are directed to be equally divided among such of the following named persons, as shall be living at the widow’s death. These persons are Ira and John Merrill, brothers of the testator, and certain nephews and nieces, who are named; and they are now represented by the plaintiffs, who claim to be entitled to the surplus rents, by reason of certain conveyances by the residuary devisees, of the residuary estate, as set forth in the case agreed on. It will be seen that, *478before the residuary devisees take anything, the estate must respond to the extent of $21,000, in land or money, to satisfy the claims of the prior beneficiaries. The value of the estate is not stated. These prior beneficiaries are entitled to intervene between the surplus fund and the residuaries, and they have not been heard, nor are they represented in this ease. The plaintiff’s grantors or assignors, if presumptively entitled to the next eventual estate, on the death of the widow, under the provisions of the statute,* are postponed until satisfaction of the claims of the persons, called by the testator his pecuniary legatees.
It does not appear that any estate will reach the residuary devisees ; but it is possible that all the estate will be required to meet the prior devises or bequests.
The facts, so far as placed before the court, do not justify judgment for the plaintiff, and, subject to further proceedings, judgment is ordered for the defendants.
Barnard, P. J., and Talcott, J., concurred.
Judgment ordered for the defendants.
1 R. S., Edmund’s ed., p. 675, § 40.