There seems to be no room for doubt that the claim in this testator’s will, which directs the accumulation of income is illegal and void; but, if counsel for the executors are right in their contention, there has been no actual accumulation, and no occasion, therefore, has yet arisen for the Surrogate to pass upon the validity of the disputed clause. For that which the contestant claims to have been surplus income, in the years 1882 and 1883, the executors insist belonged to the annuitant, in satisfaction of deficiencies in previous years.
The claim of the special guardian that, by the terms of the will, the excess of income in any given year, over the sum of §1,600, in no event belonged to the annuitant is supported by numerous citations of authorities and by cogent arguments, which would control my judgment, if I had not chanced to encounter the case of Stewart v. Chambers (2 Sandf. Ch., 382). That case is in all respects like the one at bar, and explicitly holds that, until an annuitant, situated like the one whose rights are here in controversy has been fully paid, all arrearages of lean years should be satisfied out of the income of after years that are full. I cannot find that this decision has been overruled or adversely criticised since it was *168rendered in 1845. It was greatly relied upon by the unsuccessful appellants in Delaney v. Van Aulen (84 N. Y., 16). Folger, J., in pronouncing the opinion of the Court of Appeals in that case, declared that neither the pleadings nor the facts presented the question whether the plaintiff could claim the application of one year’s surplus to a former year’s deficiency.
After a re-trial of the action in the Supreme court, and a new appeal, Dykman, J., pronouncing the opinion of the General Term in the Second Department, referred to the case of Stewart v. Chambers, and while apparently recognizing its authority, held that it was inapplicable to the facts of the case then under review. Judge Dykman’s opinion does not appear in 26 Hun, 533, where the case is merely listed, but it may be found in the appeal papers in the Court of Appeals cases for 1883 (vol. 9, Bar Asso. series).
Objection overruled.