Clarke, J.:
Frederick B. Hamlin died on Hovember 27, 1904, a resident of the county and State of Hew York, leaving him surviving his widow, Mary B. Hamlin (now Warner), his father, John A. Hamlin, his mother, Mary E. Hamlin, his brothers, Harry L., Herbert W. and George J. Hamlin, and his^ sister, Bessie F. Clark, leaving a last will and testament which was duly admitted to probate December- 5, 1904; he appointed his wife his executrix and his brothers Harry L. Hamlin and Herbert W. Hamlin executors.
He had been a theatrical manager interested in various enter [320] prises. By the 2d paragraph of his will.he-gave and bequeathed unto his friends and business associates, Julian T; Mitchell and William. -M. Gray, “ all of my theatrical properties and interests, except such as may.be composed of real estáte, of which I may' die possessed, including all stock, individual and partnership rights in and to any plays, operas, extravaganzas, scenarios, songs, musical scores, and every species of dramatic or musical- composition, scenery, costumes, properties, and other stage effects, book accounts, contract rights, Options, and clioses in action, as well as every other species of personal property in any way connected with, or which may hereafter become connected with, my business as a theatrical manager and producer; and I direct that they shall hold the same in trust for the following uses and purposes, to wit: ”
. . Thereafter follow nine clauses containing careful and precise provisions, defining the purposes and conduct of the trust so created. The provisions material to the matter át bar as throwing "light upon decedent’s'general testamentary intention are the following : “ (f) I further direct that after all of the above payments and provisions have been met, the balance of said income remaining in the hands of the said trustees shall be paid over weekly as follows : One-third to. my wife, Mary Hamlin,- and the remaining two-thirds to my brothers, Harry L., George J". and Herbert W. Hamlin, and my sister, Bessie Hamlin, in equal parts; in case of the death of any of my said brothers or my said sister, without leaving a child or children, issue of his or her body, whether his or her death occurs during my lifetime or thereafter, his or her respective share of the, above-named two-thirds shall-be. equally divided between the survivors of them my said brothers and sister, but in case of. such death at any time after the date of this instrument of such brother of.sister, leavihg a child diychildren, issue of his or her body, then such child or. children shall stand in the place of the' respective parent and take or divide what would or shall have been the share of the same in case the said parent survived, (g) Upon the death of .my said wife at any time after the date of this instrument, whether during my lifetime or thereafter, I direct that the one-third share of the said income above allotted to her, shall, ás the same shall thereafter accrue, together with' any surplus of previously paid dividends remaining i-ii her possession or control at the time of her death, be [321] equally divided among my said brothers and sister then surviving (and their said children by way of representation) upon the same basis as is provided for in subsection (f) above.
“(h) I-further direct that as soon as the best interests of my estate and. of the beneficiaries thereof shall permit of the sale or similar disposition of the corpus or principal of any part of my said theatrical properties or interests at a figure commensurate with the value of the same, my said trustees shall make such sale or similar disposition and pay over the proceeds thereof to such as may be then surviving of my said wife, sister and brothers (the children of. my said sister and brothers to stand in the stead of their respective parents by way of representation in case of the latter’s decease); in equal parts, share and share alike; and I direct that the survivors of my said brothers and sister (and the children of the same by way of representation) shall," in case of the death of my said wife at any time after the date of this instrument, take the said proceeds previously allotted to her and the interest and accretions therefrom remaining, in equal portions, share and share alike, on the same basis as is provided for above in regard to the income of my said theatrical properties; * * * it being my purpose that the said trustees shall close out and dispose of my said theatrical interests as soon after my dec.ease as the best interests of said properties and of the beneficiaries thereof shall permit or dictate.”
The will thus provided for a Weekly payment of the balance of the income of the trust estate, one-third to the wife and two-thirds to his brothers and sister, and, upon the completion of the trust, for a sale of the corpus and a payment over of the proceeds thereof to the then surviving wife, sister and brothers.
The will proceeded: “Fifth. I give, devise and bequeath unto my wife, Mary Hamlin, in lieu of dower, a life estate, similar to her life estate in the income of my theatrical interests above allotted, in one-third of all the rest and residue of my estate, both real and personal, not otherwise herein specifically disposed of, and direct that upon her death the same shall be distributed, together with all principal and interest, profits and accretions, of the real and personal property, which she, my said wife, may take or acquire up to the time of her death, by reason of any of the gifts, devises and [322] bequests contained in this instrument, among my then surviving brothers and feisters, hereinbefore mentioned, and the child or children, issue of the body, of any such brother or sister then deceased ; such child or children to stand in the place of its or their respective parent and to take the share such parent» would have taken if living at the time of my said wife’s decease. * ' * * Sixth. I give, devise and bequeath unto my said brothers and sisters (and, in case of their decease, unto their said children by way of representation), the remaining two-thirds of all the said rest and residue of my estate, both real and personal, not otherwise herein specifically disposed of, in equal portion, share and share alike; in case of the death of any of my said brothers or sister (either prior or subsequent to my decease), leaving no child of children, issue of the body, the share that would or shall have been taken by such brother or sister, shall go to the survivors of them in equal portions, share and share alike, but in case of such heath leaving such child or children then the latter shall take the share that would or shall have gone to' the respective parent in case of survival. Seventh. It is my intent and purpose throughout this instrument that my said wife shall take a life estate only in and to every devise or.bequest of real or personal property, and in and to the income .or accretion. therefrom, except only the bequests contained in section Fourth hereof ; that iipon her death all such property, except as aforesaid, shall go to my said brothers, and sister surviving (and to their children by way of representation), to be enjoyed by them, my said brothers and sister, during the course of their natural lives, with remainder to their said children; that every interest in. any of the property disposed of by this instrument coming to my said' brothers or sister shall be subject to the interest of their respective children (or if dying childless to that of the survivors of such brothers and sister) by way of an estate in remainder as to such children and a life estate as to said brothers or sister ; that upon my death, or that of any of my said brothers or sister, or of my said wife, whereby an estate in enjoyment shall be created in favor of said children, issue of- the body, of my said brothers and sister, such estate shall be an absolute estate and vest the property absolutely in such children without qualification; that the words ‘ child or children ’ as used in this instrument, shall not be confined to such as are living at the date of my decease, but shall [323] include such as have been born to my said brothers or sister at any time within twenty-one years of my decease; that the property in every case disposed of herein shall not be confined to such as is possessed by me at the date of this instrument but shall include all property thereafter acquired up to the date of my decease. * * * Ninth. I direct further that one-fourth part of the income received at any time from my estate by any of my said brothers or sister (or their children by way of representation) shall be paid over by each of them to my mother, Mary E. Hamlin, in case she shall survive me, during the balance of her life,”
The learned referee found, among other things, as follows: “ V. The remaindermen under the said will are all infants, represented upon the record by Cipriano Andrade, J r., Esq., as special guardian. Their names are as follows: George E. Hamlin, Anna M. Hamlin, John F. Hamlin, Dorothy Hamlin. VI. By the 1 Fifth,’ 6 Sixth ’ and ‘ Seventh ’ articles of his will the testator bequeathed a life interest in the income of one-tlnrd of his residuary estate to his widow, Mary B. Hamlinj and a life interest in the remaining two-thirds to his three brothers and sister, with remainder over under - certain circumstances, in absolute ownership, to his nieces and nephews. VII. This residuary estate was composed substantially of cash and stocks and bonds of. business corporations, and practically all of it * * * was turned over to the said life tenants, without the exaction of any security from them. VIII. The said residuary estate, so distributed, was composed of securities, which were by agreement between the said executors and the said life tenants, taken over at a cash valuation, as set forth in Schedule D2 of the Executor’s account. The agreed cash value of the respective portions of the residuary estate so received by the said life tenants, was as follows:
“ To Mary B. Hamlin, one-third............ $48, 815 82
To Harry L. Hamlin, one-sixth...........* 24,407 91
To Herbert W. Hamlin, one-sixth......... 24,407 91
To George J. Hamlin, one-sixth.......... 24,407 91
To Bessie H. Clark, one-sixth............. 24,407 91
-----a
* $146,447 46
[324] “ IX. Ho security was exacted from any of the distributees, and the said distribution was made without the sanction of the Court and without notice to the remaindermen. X. Each of the said life tenants gave a receipt to Herbert W. Hamlin, the accounting executor, wheréin .the receipt of the securities was acknowledged on account of the distribution of the estate of the above-named decedent under his will, and accepted in lieu of the money value thereof at the valuation stated in said receipt.”
And as conclusions of law, “ I. The executor, Herbert W. Hamlin, and the executrix, Mary B. Hamlin, now Warner, should be surcharged with the amount of the corpus of .the residuary estate distributed to the life tenants. II. The said Mary B1 Hamlin, now Warner, is entitled to a life interest only in one-tliird of the said residuary estate, and the said Harry L.,Hamlin, Herbert W. Hamlin, George J. Hamlin and Bessie H. Clark 'áre each entitled to a life interest in the remaining two-thirds of said residuary estate.”
In his opinion the referee said as follows : “ This residuary estate was composed substantially of cash, bonds of business corporations, and certificates of the ownership of shares in various business corporations. So far as these securities are concerned, they are of a kind which executors are not permitted either to hold or to acquire as an investment of estate moneys. Most of them were never disposed of, and the proceeds of such of them as were sold, together with a large amount of the cash on hand, wTere placed in investments of a similar character. All these bonds and certificates have been distributed among those entitled, as life tenants, to take the income of .the' residuary estate. .This was done without the exaction of security, without the sanction of the court and without notice to the remaindermen., all of whom are infants. * * * It is also worthy of notice that the three executors, together receiving four-sixths of the said income as life tenants, have attempted to take the power of disposition of that proportion of the principal from themselves jointly and in trust as executors, and to vest that power in themselves■ severally and absolutely as legatees. In considering the questions here presented, an examination of the ‘ Fifth,’ ‘ Sixth ’ and ‘ Seventh ’ elapses of the will, which are the only ones relating directly to the disposition of the residuary estate, shows that there is no provision for the possession of the principal by the life tenants, and that they are given [325] no more than the enjoyment of their respective shares of the income which that estate may produce during the lives of the said life tenants. Under these circumstances it was the duty of the executors to convert the bonds and-stocks of the residuary [estate] into money, as not being legitimate forms of investment for trust funds, to invest the same and all other moneys belonging to said estate in lawful securities, and to pay over the income to the life tenants.”
It appeared in evidence that Mrs. Warner had sold almost all of the securities delivered to her, and had made a net profit upon such sales of $13,046.55. The learned surrogate confirmed the referee’s report, ordered." that the value of the securities forming the corpus of the residuary estate, with which the executor, Herbert W. Hamlin, and the executrix, Mary B. Warner, are surcharged, shall be the present value of the said'securities,” and that “ the question of the present value of the securities with which the accountants are found chargeable ” be referred to the former referee to take testimony thereof and to report to the court the evidence and his conclusions thereon. It is from that order that this appeal is taken.
The questions presented to this court are but three: First. The legatees having agreed upon a distribution in kind of the residuary estate, and upon the value thereof, were they entitled to receive as. life tenants their distributive shares in possession % Second. Having so agreed, and having received possession of said shares, should the executor and executrix be surcharged in their accounting with the value thereof % Third. If so, should that surcharge be as of the value at the time of distribution or of the agreed value at said time or as of the present value %
As a practical question, so far as security to the remaindermen is concerned, it should be pointed out: First, that the will provided that no. bond or security of any sort should be required of the executrix and the two executors in that capacity, and that the executrix and the executors are three of the five life tenants. Second, that the remaindermen are the children of three of the life tenants, the brothers of the decedent, of whom two are executors of the will. Third, that in settlement of another matter growing out of the estate of the decedent, Mrs. Warner has entered into an agreement under seal with the brothers and sister of her late husband, wherein, among other things, she agreed “ to give a good and sufficient bond [326] to the executors of said Frederick E. Hamlin, deceased, for securing to the remaindermen the safe payment to them upon her death of the principal of the fund paid and to be paid over to her by said executors, as such legatee^ for her use during her life.”
Where, a testator creates a life estate with remainder over in personal property, the rule is clear that the life tenant is entitled to possession, and upon possession becomes a trustee for the remaindermen, if a clear intent can be found in .the will to vest such possession. (Matter of Ungrich, 48 App. Div. 594; affd., 166 N. Y. 618.)
The will at bar is .a long and carefully drawn document. Testator, in the disposition of his estate, had the general scheme of cre.ating a life estate in one-third of his property for the benefit of his widow, and of equal shares of the remaining two-thirds for the benefit of his brothers and sister, with remainder over to their children. In the carrying out of this scheme he discriminated very carefully between the different kinds of property owned by him. Being in the theatrical business and understanding its characteristics and peculiarities, he created a trust and appointed his former business associates as trustees thereof, and gave and bequeathed unto them all of his theatrical properties and interests, except such as might be composed of • real estate. After providing for the payment of the salaries of the persons connected therewith and the necessary and current expenses of said properties, he provided that they should retain in their hands a fund of $10,000, the principal or interest of which was to be applied to the preservation and proper handling of said theatrical interests, but the bulk of such fund should be kept invested “ and the income thereof be added to the general income of my estate and disposed of from time to time as is hereinafter provided the. said general income shall be distributed ; after the closing out of. my said theatrical interests, the balance of said fund then remaining shall also be distributed upon the same basis.” Here the payment of the surplus income and the ultimate disposition of- this specific fund in the hands, of the trustees was made dependent upon the subsequent provision of the will governing his general estate, indicating a clear intent pervading the whole will.
In the next subdivision he directs that, after the payments- and [327] provisions have been met, the ■■ trustees shall pay over weekly the balance of the income, one-third to his wife and two-thirds to his brothers and sister. Pie then gives the trustees a power of sale, and directs them to so sell his theatrical properties and interests as soon as the best interests of his estate shall permit, and directs them to pay over the proceeds thereof to his wife, sister and brothers. And he directs that in the case of the death of his wife, his brothers and sister shall take the said proceeds previously allotted to her and the interest and accretions therefrom remaining.
He further provides: “ As soon as the said trustees shall have disposed of the last of said theatrical properties and interest, and properly accounted for'and paid over the income and proceeds thereof, it is my desire that they be discharged from the said trust.” That is, immediate possession and control was vested in the trustees, with directions to pay over the income, with power to sell, and with specific instructions not to hold the proceeds thereof, and continue the trust, paying the income therefrom to the cestuis que trust, nor to pay the proceeds thereof ovfir to the executors as a part of the general estate, but to pay said proceeds directly in the designated portions to his wife, brothers and sister. There can be no doubt that upon that event his widow and his brothers and sister were entitled to take and hold the proceeds so distributed, and that the trust came to an end.
As to the balance of his estate, he first made a specific bequest of $2,500 to a friend and associate; then to his wife a specific bequest of his personal jewelry, clothing, household furniture, pictures, plate, horses, carriages and similar effects, “ to be and remain her own absolute property.” He then used direct words of gift: “ I give, devise and bequeath unto my wife * * * a life estate, similar to her life estate in the income of my theatrical interests / above allotted, in one-third of all the rest and residue of my estate, both real and personal; * * * I give, devise and bequeath unto my said brothers and sister * * * the remaining two-thirds of all the said rest and residue of my estate,"” with provisions in both paragraphs for remainder over to the children of his brothers and sister. Then by a special and further clause he clearly defined his own intentioii: “ It is my intent and purpose throughout this instrument that my said wife shall take a life estate only in and to [328] every devise or bequest of real or personal property, and in and to the income or accretion therefrom, except only the bequests contained in section .Fourth hereof [which was the direct bequest of his jewelry, household furniture, etc.]-; that upon her death all such property, except as aforesaid, shall go to my said brothers and sister, surviving * * * tobe enjoyed by them * * * during the course of their natural lives, with remainder to their said children ; that every interest in any of the property disposed of by this instrument, coming to my said brothers or sister shall be subject to the interest of their respective children (or if dying childless to that of the survivors of such brothers and sister) by way of an estate in • remainder as to such children ard a life estate as to said brothers -or sister.”
There can be no doubt here of - his intention to create a life estate of the residue of his property in his wife and brothers and sister, with remainder over to their children. It will be noted that the words of gift are direct; ¡that no power of sale is conferred upon the executors,, as was the case in regard to-the trustees as to the trust estate: that he refers back to former clauses in the will; that he Uses the phrase ■“ my intent and purpose throughout this instrument,” showing a purpose pervading all his dispositions, which requires us, in the interpretation of one clause, to give force and effect to all if possible.
■ The will shows that the testator had clearly in mind the difference between a trust estate, a specific bequest with. absolute title, an estate for life, and a power of sale. It would seem natural that if he had intended to reserve from the tenants for life possession of ' his estate, he would either have extended the trust created by the first portion of his will over his entire estate, or would have made similar specific instructions to his executors. He did neither. On the contrary, having provided as to the trust estate that the proceeds of the sale upon the final winding up thereof should be paid over, he then said, when he came to define the life estate to his wife, “ similar to.her life estate in the income of my theatrical interests above allotted,” and, tying them closely together in a set purpose with, a fixed idea, requiring a common- interpretation, “ it is my intent and purpose,” not in regard to the residuary estate alone now being disposed.of, but “ throughout this instrument that my said wife shall [329] take a life estate only in and to every devise or bequest of real or personal property, and in and to the income or accretion therefrom, except- only the bequests contained in section Fourth hereof.”
It seems to us plain, therefore,, that there is to be found in this will the clear and unambiguous expression of intent of the testator to give to his wife the present possession of one-third of his estate to be held by her for her life and with remainder over, and that she had a right to take such one-thirdthat his brothers and his sister also had the same right, and that, having made out of court the distribution warranted by the will, the executrix and executor are not to be surcharged in their accounting with the value thereof.
This interpretation is strengthened by the further provision of the will that “one-fourtli part of the income received at any time from my estate by any of my said brothers or sister, * * * shall be paid over by each of them to my mother.” If it was his 'intention that the executors should hold the estate as continuing trustees, the direction would have been to them to pay over to the mother, but here the direction to pay is to his brothers and sister, who, by the preceding portions of the will, had been vested with the possession of the life estate.
.The learned surrogate has acted upon the theory- that it was the absolute duty of the executors to retain possession of the personal property, to convert the stocks and bonds into money as not being legitimate forms of investment for trust funds, to invest the same and all other moneys belonging to said estate in lawful securities, and to pay over the income to the life tenants. This view is in direct opposition to the intention of the testator expressed in his - will, as we have demonstrated supra.
The second proposition is, that if the executors did transfer the possession to the legatees as life tenants, it was their duty to require of said life tenants security for the benefit of the remaindermen.
We do not think the authorities support any such absolute obligation. We think that the utmost that can be said is that a discretion is conferred upon the executors, to require security for the ultimate benefit of the remaindermen, if, in their judgment, under the terms .of the will and the circumstances existing at the time of the payment over, they deem it necessary. But when they have acted and have transferred the possession to the life tenants. [330] without requiring security, they are not to be surcharged with the amounts so paid, because of the mere fact that in the exercise of their discretion they did not demand such security.
In Smith v. Van Ostrand (64 N. Y. 278), Rapallo, J., said: “ When a life estate is bequeathed in a sum of money, with remainder over, the legatee is entitled only to the income, and the principal, subject to the life estate, belongs to the remainderman, and, unless otherwise directed by the will, it is the duty of the executor either to invest the’money and! pay the interest to the first legatee during life, and preserve .the principal for the remainderman, or, on paying it over to the legatee, to require. security from him for the protection of the remainderman in respect to the principal. (Tyson v. Blake, 22 N. Y. 558.) But it is within the power of the testator to dispense with these safeguards and to confide the money to the legatee for life, trusting to such legatee to preserve the fund for the benefit of the remainderman, in which case the legatee for life. becomes trustee of the principal during the continuance of the life estate. * * . * The executors * * * when they paid it over to the widow, parted with all interest in it, and left it to follow the course directed by the will. They were required by the will to pay it over to the widow, and having done so were discharged from all liability, and divested of ¡all power concerning it.”
In Matter of Ungrich (supra), where the court had held that by the clear and unambiguous terms of the will the testator had taade his wife the testamentary trustee of the principal of his personal estate for life and had given her the custody and possession of the personal property, the court said: “She is, therefore, entitled to such custody and possession as such trustee, and can no more be required to give security as a matter of course than the appellant executors could be required to give security as a condition precedent to the execution of the trust reposed in them. ‘ Before making an order for such security,’ said the court, in Matter of Petition of Camp (126 N. Y. 377, 385), There must be some fact alleged and proved tending to show the property would be unsafe and insecure in the hands of the tenant for life.’ ” (Citing authorities.)
. In Leggett v. Stevens (185 N. Y. 70) the court said: “ The referee has found, upon ample evidence, that the widow took the fund in question individually and not. as administratrix of her hus[331] band’s estate. She was thus constituted a trustee for the remaindermen. When the administrators of the testator turned over to the widow, for use. during her life, the securities and cash representing the legacies of $12,000, they parted with title and possession thereof, and were discharged from all liability and divested of all power concerning them. (Smith v. Van Ostrand, 64 N. Y. 278; Matter of McDougall, 141 id. 21; Matter of Ungrich, 48 App. Div. 594; affirmed, 166 N. Y. 618.) ”
In Matter of Bushnell (73 App. Div. 325) this court said : “ Ordinarily a life estate in personalty (not specifically bequeathed) does not entitle the life tenant, as a matter of right, to the possession, and the executors must exercise ordinary prudence in determining whether they will turn over the corpus upon a mere receipt acknowledging the interest of the remainderman or whether they will require security or retain the fund and pay over the income. * * * But whether the life tenant would be entitled to the possession of the property or not there is no presumption that she will unlawfully use or waste the corpus of the estate which it is her duty to preserve for the benefit of the remainderman. If she be entitled to possession and the nature of the property or the circumstances or her financial condition are such as to render it proper that she should give security that she will preserve the principal, the surrogate is authorized to require such security before the executors would be required to turn the property over to her.”
We are satisfied from these authorities that while it is plain that if the residuary estate were still in the hands of the executors and executrix, undistributed, and the legatees were attempting to enforce a transfer to them by the executors, they could, in a proper case, be required to give proper security as a condition precedent, but as the executors have made the distribution, authorized by the will, the Surrogate’s Court had no power to surcharge their accounts with said payments because no security was required. The funds have passed from their hands as executors and executrix to the legatees who now hold them as trustees for the remainder-men. As such trustees the legatees are subject, in the conduct of their trusts, to the usual supervision of a court of equity in proper proceedings.
It, therefore, becomes unnecessary to now consider whether upon [332] an accounting the value of the property should be taken as of the time of distribution or as of the time of :the accounting, because although the tenants for life.are trustees for the remaindermen, they are not being called to account at this time, and in the Surrogate’s Court, for their handling of said trust estate. •
It follows that the order appealed from should be reversed and the matter remitted to the Surrogate’s Court, with instructions to proceed upon the accounting in accordance with this opinion, with ten dollars costs and disbursements to the special guardian and the appellant, to he paid out of the estate.
Ingraham, P. J.,. McLaughlin, Laughlin and Scott, JJ., concurred.
Order reversed and proceeding remitted to Surrogate’s Court as stated in opinion, with ten dollars costs and disbursements to the special guardian and the appellant, to be paid out of the estate.