In re Kendall

The Surrogate

Upon the question, whether the excess of receipts over expenditures in the fourth year of the administration of this estate may properly be distributed among the beneficiaries of the income of the residue, or should, because of deficiencies in previous years, be retained by the executors as part of the corpus of the residuary estate, counsel have referred me to no decided cases.

From such consideration as I have thus far been able to give to the matter, I am inclined to think that, in the absence of express directions by the testator, his estate should be kept in specie as it stood at his death —it may be proper to" adjust the respective claims of those who are given the income thereof for life, and those who, upon the death of such first takers, will become entitled to the principal, by ascertaining what sum would have been produced as interest or income, if, at the end of a year from the testator’s death, the "whole estate had been converted into cash, and invested in such securities as are sanctioned by our courts," and by paying over that sum. to the life beneficiaries, whether the same shall be more or less than the actual income during the same period (see the discussion of this subject in 2 W’ms on Ex’rs, part 3, *137book 3, ch. 4, § 4; Covenhoven v. Shuler, 2 Paige, 122; Cairns v. Chaubert, 9 id., 160; Spear v. Tinkham, 2 Barb., Ch., 21; Lawrence v. Embree, 3 Bradf., 364; Kinmouth v. Brigham, 5 Allen [Mass.], 270; Healey v. Toppan, 45 N. H., 243 ; Minot v. Thompson, 106 Mass., 583).

I am unwilling, however, to direct the adoption of the scheme above suggested, until counsel have been afforded opportunity to discuss it. Briefs may be submitted at any time before July 10th.