(dissenting):
This is an appeal by tbe widow of tbe deceased testator from so much of tbe decree of tbe surrogate as denies her petition to compel tbe executrix, having custody of tbe remnant of tbe estate of John Cocks, deceased, to apply tbe same toward tbe payment of arrears of annuities- due to tbe petitioner under tbe last will and testament of her said husband. By one of tbe provisions in tbe will tbe testator directed bis executors to invest sufficient of bis estate on bonds and mortgages on real estate in Westchester county to produce a net income of $1,000 a year, and to pay such income over to *304his widow in half yearly payments so long as she should, remain unmarried.
All of the children of the testator and his wife and the husbands of such of them as were married were appointed executors of the will, and all of them qualified. No investment was ever made as directed by the will, or in any other manner, but the sum of $10,000 was invested in one of the western states at an. interest of ten per cent to produce the annuity of $1,000, provided for by the testator in favor of his widow, and the remainder of the estate was divided among the residuary legatees.
All that now remains of the principal of the estate is $4,350, together with nearly $3,000 of accrued interest, and the amount of the arrears of the annuity due to the widow is equal to the accrued interest and the principal now remaining; and the question before the surrogate was whether he should direct the payment of the whole to the widow, and he decided that the widow was entitled only to the accumulated interest of the fund, and such as might accumulate upon the principal hereafter.
It was plainly the intention of the testator that the annuity provided for his wife should be paid out of the income of the money to be invested in her favor for that purpose, and that the body of the estate should remain until the death of the annuitant.
The annuity was to be paid out of the sum invested; the residue of the estate was given in equal shares to the children, and their legacies were to be paid at the end of a year after the testator’s death, and the whole of the estate was thus disposed of by the testator leaving nothing to which' resort could be had to make good any deficiency which might accrue by the misconduct or misfortune of the executors.
Our conclusion is that the widow was entitled only to the interest of the residue of the body of the estate remaining in the executors’ hands which is given to her in the decree from which the appeal is taken, and the same should be affirmed, with costs
Decree of surrogate modified by directing payment of entire residue of estate to widow, with costs to the appellant of this appeal.