With some hesitation I concur in brother Hardin’s opinion for the reasons given. I do so the more readily because the disposition ' of the matter made by the surrogate seems to me very unjust. The whole estate going into the executor’s hands was:
$23,008.52 in 1883 .............................. $23,008 52
It is conceded that $14,000 of these assets were paid by and through the widow to residuary legatees.... 14,000 00'
$9,008 52
The executor was also credited :
Schedule B.......................... $1,808 58
Schedule C.......................... 460 00
Schedule D......................... 509 38
Paid S. W. Woods, in Schedule E...... 478 00
Paid S. W. Woods, cows, Schedule E... 48 00
.Executors’ commissions............... 420 16
Sarah Woods, 17th finding............ 226 00
-:--- 3,950 12
Leaving an apparent balance of.............. $5,058 40
in the .executor’s hands to be accounted for. This may not be accurate, but it is near enough to illustrate what I have to say. *67Now the residuary legatees got, April, 1853, the above $14,000 on which they have paid but one year’s interest, and they have énjoyed such sums for a quarter of a century before they were entitled to it, by the conrtesy and consent of the executor and the widow. During all that time the widow was entitled to the interest on that sum as well as on the above balance of $5,058.40. The residuary legatees never paid it after the first year. The executor was never released from his obligation to pay it, especially if his payment of that sum to the widow, and through her to the residuary legatees, was, as the surrogate finds, wrongful and in violation of the terms of the will. Because the widow consented that a certain portion of1 the trust fund might be paid directly to the legatees, she did not waive her claim to the income of it so long as the assets remaining in the hands of the executor were sufficient therefor.
The legatees, in receiving said payments, recognized the widow’s right to interest upon the $14,000 during her lifetime, but did not pay or contribute to it except for the first year. The executor paid the above balance of $5,058.40, and much more to the widow, without their paying her all she was entitled to under the will. And now these residuary legatees wish to hold the $14,000 paid them in April, 1853, to be exempted from payment of interest thereon for twenty-four years, which, at seven per cent, would amount to over $20,000, or, at $500 per year, would amount to $12',000, and finally, to compel the executor to pay to them moneys which he has already paid to the widow in satisfaction of what they had agreed to pay her, as well as in satisfaction of his legal obligation and duty under the will. It is plain that such payments by the executor to the widow have more than exhausted the $5,058.40 balance in his hands, and that by such payments the legatees have been benefited in exemption from payment of interest to a far greater amount. The claim seems to me so palpably inequitable and unjust that, if possible, it should not succeed.
I think the surrogate might justly have held, as law, that the executor was bound to pay the widow the income of the whole residuary estate notwithstanding the payment of the $14,000 to the legatees, so long as the assets in his hands sufficed therefor, and that when it was exhausted the widow would be estopped, by her consent to such payment, from any further demand of interest from *68the executor. He' might have well held that the contestants, by their receipt of $14,000 in 1853, had received the value of their interest in the residuary estate, while the widow, who only received $5,058, or thereabouts, had received much less than she was entitled to under the will and under all the facts and contracts in evidence in this case. In equity and justice the contestants are not entitled to anything more out of the executor or the estate, beyond what they received in 1853, twenty-five years before they were entitled to receive the same.
So that I think, for this reason also, the decree of the surrogate should be reversed, and as the estate has no moneys with which to pay the costs, the contestants should be charged with the costs of this appeal and of the accounting. •
Follett, J., concurred with opinion of Hardin, P. J., and with memorandum of Boardman, J.Decree of the surrogate of Oswego county reversed, with costs and disbursemen ts of the appeal to appellant, payable by respondents personally, and costs of the proceedings to abide the final award of. costs by the surrogate.