John Cocks, by his will, made a provision for his wife as follows : He directed his executors “ to invest such sum 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, to pay to my beloved wife, Adelia Cocks, the sum ■of one thousand dollars per year from my decease, and to be paid to her by my said executrix semi-annually, so long as she shall remain .my widow, unmarried, and no longer, and this provision to 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 were 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 on the annuity for sometime, and then the payments altogether ceased. The amount now due to 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 ■remaining in the executor’s hands 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 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 *303permitted to be overruled by tbe direction that tbe 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 tbe present one. A testator gave an annuity, payable “ out of tbe income of my estate.” Tbe property was so unproductive that the income was not equal to tbe charge on it, although tbe estate bad productive property to a considerable amount. ^ The Court of Appeals held that tbe legacy was payable to tbe wife, out of the principal of tbe estate, because otherwise tbe wife would get nothing, and tbe residuary legatees would alone be benefited. Tbe executors were held to be bound to produce an annuity, or in some other way to secure tbe payment of tbe annuity.
Tbe present case seems much stronger in favor of tbe widow. She accepted tbe annuity in lieu of dower, and tbe testator owed tbe annuity as purchase-money. (2 Redf. on Wills, 747.) In tbe next place tbe executors have failed to set apart a fund to raise tbe annuity, but have distributed a very large part (some $85,000) of tbe estate among themselves. It is manifest that tbe testator intended to charge this annuity upon bis entire estate until this fund was set apart. If tbe executors, who were the residuary heirs, can reduce the estate by division among themselves, and fail to set apart tbe fund, and thus reduce tbe annuity to about $200, tbe result is in every way inequitable.
The decree of tbe surrogate should be modified so as to direct tbe payment of tbe entire residue to tbe widow on account of her annuity, with costs to tbe appellant of this appeal.
Pratt, J., concurred..