Hotchkiss, J.:
What, if any, relief plaintiff is entitled to depends upon the intent of the testatrix, to be gathered from the will itself. It must have been apparent to the testatrix that the real estate constituting the major portion of her estate could afford the plaintiff no income except from proceeds of sales. The devise of the share in which plaintiff is interested is direct to trustees, who were in fact identical with the individuals named as executors, although this identity was a coincidence of person merely and not of estate. But inasmuch as an express power of sale was given to the executors as such, and not to them as trustees, I think it was evidently the intention of the testatrix that this power should be executed by the executors as such, although the time, terms and circumstances of its execution were left wholly discretionary, as there are neither mandatory nor directory words in the clause creating the power. Viewed in this light, the only right of the trustees was to receive for plaintiff’s account such “ surplus ” as might remain after taxes [668]*668and assessments had been paid. If the power to sell were to be construed to be an imperative power to be executed at once as to all the real estate, there would be no force in the words which authorized the executors to “ apply such portions of the proceeds as in their judgment they may deem proper to the payment of any taxes and assessments that may be liens upon said real estate or any part thereof, and to pay over the surplus that may not be required in their judgment for the above ” purposes, because the sale of any real estate on which liens for taxes or assessments existed would necessarily require the payment of such liens from the purchase money. It is manifest also that the discretion with which the executors were vested permitted them to sell from time to time so much only as might at the utmost be necessary to pay the taxes and assessments on the whole, thus leaving no “ surplus ” for distribution. What the testatrix evidently intended was that the real estate devised to the trustees should be held by them as such, and that as executors they should from time to time as to them seemed best, sell portions, and after paying the taxes and assessments on the whole or on such parts as they deemed proper, they should pay over to themselves as trustees any remaining “surplus,” the same to be held under the terms of the will. Until such sales were made, taxes paid, and “ surplus,” if any, paid over, there necessarily could be no income for plaintiff to enjoy. Nor can I see that any different result would be reached should we construe the power of sale to be mandatory and immediate, for in that event as well, all the trustees would have been entitled to receive was the “ surplus ” to which I have alluded, and until such “ surplus ” was obtained by the execution of the power there could be no income to which plaintiff would be entitled. If it be urged that the interpretation I put upon the will leaves the plaintiff at the mercy of the discretion of the executors and sacrifices her for the benefit of the remaindermen, I think a sufficient answer lies in the fact that in the event of any improper delay, the plaintiff might have appealed to the court to direct the executor to execute the power. Although I do not think it necessary to resort to rules of construction to ascertain the intent of the testator in this instance, should we revoke such rules, they do [669]*669not in my opinion aid this plaintiff. We may accept it as settled law in this State that where the income or interest of a particular fund is bequeathed to one for life (Matter of Stanfield, 135 N. Y. 292), or where there is a clear bequest of a life estate in a residuary fund or some part thereof (Matter of Benson, 96 N. Y. 499, 511), if the will evidences no different intent, the legatee for life is entitled to interest or to the income as afterwards ascertained, to be computed from the death of the testator. Necessarily the rule is not one of property, but one of construction, and its reason lies in the injustice of increasing the principal for the benefit of the remaindermen, who would thus be given just so much more than existed at the time of the testator’s death, and this at the expense of the Ufe estate. (Davison v. Rake, 44 N. J. Eq. 506.) The cases in which this rule has been successfully invoked are very numerous. In some States, as in Massachusetts, the matter seems to be the subject of a statute. (See Ayer v. Ayer, 128 Mass. 575.) But all the cases I have found are, I think, distinguishable from the present, and none of binding authority involved unproductive real estate. The cases may be roughly classified as involving productive real estate; gifts of productive personalty or of personalty easily susceptible of being made productive; of an annuity or income; gifts to widows or in lieu of dower, or to infants, children of the testator, or such as toward whom he stood in loco parentis; where part of the estate consisted of wasting property, such as leaseholds, or where mortgages or other investments of the trustees have been foreclosed or taken in and a question arose as to the apportionment of the proceeds which included a profit or something on account of income. That the principle is not a rule of thumb to be indiscriminately applied, and that even in the case of personalty it has regard for a situation where no income has in fact been earned, or might reasonably be expected to be earned, is clearly shown by the authorities and also appears in that portion of the opinion of the chancellor in Williamson v. Williamson, where the distinction is pointed out between those instances where a fife estate is constituted in a clear residuary fund and where “ the testator had directed one species of property to be converted into another, or the residuary fund to be invested in a particular manner, and had then [670]*670given a life estate in the fund as thus converted or invested. ” In the former class, having regard for actual income conditions in esse or in posse, the income awarded to the life estate is computed from the time of the death of the testator, whereas, because of the delay in securing income necessarily incident to . the latter class, the computation is not made until “the conversion takes place or the investment is made,” for which purpose one year from the date of the testator’s death has been adopted as a convenient period from which the computation of income shall date. (6 Paige, 304, 305.) In Edwards v. Edwards (183 Mass. 581), which is so greatly relied on by the respondent, there was a gift of all testator’s property direct to trustees to pay the income, less certain specified sums, to testator’s wife for life. The estate consisted of unimproved real estate and personal property. The former, after a delay of some years, was sold at a large advance over its inventoried value, and the question before the court related solely to an apportionment of the proceeds between the widow and the remaindermen. A mere statement of the facts should be sufficient to show the material respects in which that case is different from the present.
The precise situation we have here is one which, so far as I can find, has never been presented in any reported, case in this State. It is one of a gift of personalty and unproductive real estate combined, to trustees, with an absolute power in the executors to convert, accompanied by a discretion as to the time when such conversion is to take place, and where there has been no profit and the conversion has been justifiably delayed.
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Hotchkiss, J.:
What, if any, relief plaintiff is entitled to depends upon the intent of the testatrix, to be gathered from the will itself. It must have been apparent to the testatrix that the real estate constituting the major portion of her estate could afford the plaintiff no income except from proceeds of sales. The devise of the share in which plaintiff is interested is direct to trustees, who were in fact identical with the individuals named as executors, although this identity was a coincidence of person merely and not of estate. But inasmuch as an express power of sale was given to the executors as such, and not to them as trustees, I think it was evidently the intention of the testatrix that this power should be executed by the executors as such, although the time, terms and circumstances of its execution were left wholly discretionary, as there are neither mandatory nor directory words in the clause creating the power. Viewed in this light, the only right of the trustees was to receive for plaintiff’s account such “ surplus ” as might remain after taxes [668]*668and assessments had been paid. If the power to sell were to be construed to be an imperative power to be executed at once as to all the real estate, there would be no force in the words which authorized the executors to “ apply such portions of the proceeds as in their judgment they may deem proper to the payment of any taxes and assessments that may be liens upon said real estate or any part thereof, and to pay over the surplus that may not be required in their judgment for the above ” purposes, because the sale of any real estate on which liens for taxes or assessments existed would necessarily require the payment of such liens from the purchase money. It is manifest also that the discretion with which the executors were vested permitted them to sell from time to time so much only as might at the utmost be necessary to pay the taxes and assessments on the whole, thus leaving no “ surplus ” for distribution. What the testatrix evidently intended was that the real estate devised to the trustees should be held by them as such, and that as executors they should from time to time as to them seemed best, sell portions, and after paying the taxes and assessments on the whole or on such parts as they deemed proper, they should pay over to themselves as trustees any remaining “surplus,” the same to be held under the terms of the will. Until such sales were made, taxes paid, and “ surplus,” if any, paid over, there necessarily could be no income for plaintiff to enjoy. Nor can I see that any different result would be reached should we construe the power of sale to be mandatory and immediate, for in that event as well, all the trustees would have been entitled to receive was the “ surplus ” to which I have alluded, and until such “ surplus ” was obtained by the execution of the power there could be no income to which plaintiff would be entitled. If it be urged that the interpretation I put upon the will leaves the plaintiff at the mercy of the discretion of the executors and sacrifices her for the benefit of the remaindermen, I think a sufficient answer lies in the fact that in the event of any improper delay, the plaintiff might have appealed to the court to direct the executor to execute the power. Although I do not think it necessary to resort to rules of construction to ascertain the intent of the testator in this instance, should we revoke such rules, they do [669]*669not in my opinion aid this plaintiff. We may accept it as settled law in this State that where the income or interest of a particular fund is bequeathed to one for life (Matter of Stanfield, 135 N. Y. 292), or where there is a clear bequest of a life estate in a residuary fund or some part thereof (Matter of Benson, 96 N. Y. 499, 511), if the will evidences no different intent, the legatee for life is entitled to interest or to the income as afterwards ascertained, to be computed from the death of the testator. Necessarily the rule is not one of property, but one of construction, and its reason lies in the injustice of increasing the principal for the benefit of the remaindermen, who would thus be given just so much more than existed at the time of the testator’s death, and this at the expense of the Ufe estate. (Davison v. Rake, 44 N. J. Eq. 506.) The cases in which this rule has been successfully invoked are very numerous. In some States, as in Massachusetts, the matter seems to be the subject of a statute. (See Ayer v. Ayer, 128 Mass. 575.) But all the cases I have found are, I think, distinguishable from the present, and none of binding authority involved unproductive real estate. The cases may be roughly classified as involving productive real estate; gifts of productive personalty or of personalty easily susceptible of being made productive; of an annuity or income; gifts to widows or in lieu of dower, or to infants, children of the testator, or such as toward whom he stood in loco parentis; where part of the estate consisted of wasting property, such as leaseholds, or where mortgages or other investments of the trustees have been foreclosed or taken in and a question arose as to the apportionment of the proceeds which included a profit or something on account of income. That the principle is not a rule of thumb to be indiscriminately applied, and that even in the case of personalty it has regard for a situation where no income has in fact been earned, or might reasonably be expected to be earned, is clearly shown by the authorities and also appears in that portion of the opinion of the chancellor in Williamson v. Williamson, where the distinction is pointed out between those instances where a fife estate is constituted in a clear residuary fund and where “ the testator had directed one species of property to be converted into another, or the residuary fund to be invested in a particular manner, and had then [670]*670given a life estate in the fund as thus converted or invested. ” In the former class, having regard for actual income conditions in esse or in posse, the income awarded to the life estate is computed from the time of the death of the testator, whereas, because of the delay in securing income necessarily incident to . the latter class, the computation is not made until “the conversion takes place or the investment is made,” for which purpose one year from the date of the testator’s death has been adopted as a convenient period from which the computation of income shall date. (6 Paige, 304, 305.) In Edwards v. Edwards (183 Mass. 581), which is so greatly relied on by the respondent, there was a gift of all testator’s property direct to trustees to pay the income, less certain specified sums, to testator’s wife for life. The estate consisted of unimproved real estate and personal property. The former, after a delay of some years, was sold at a large advance over its inventoried value, and the question before the court related solely to an apportionment of the proceeds between the widow and the remaindermen. A mere statement of the facts should be sufficient to show the material respects in which that case is different from the present.
The precise situation we have here is one which, so far as I can find, has never been presented in any reported, case in this State. It is one of a gift of personalty and unproductive real estate combined, to trustees, with an absolute power in the executors to convert, accompanied by a discretion as to the time when such conversion is to take place, and where there has been no profit and the conversion has been justifiably delayed. In every case I have been able to find involving the interpretation of a testamentary devise of this character, where the court has applied the rule adopted by the court below, there had been an increase in value, or the court was dealing with a species of property which lent itself to the presumption that the testator intended that the life tenant should participate in the enj oyment of the income which the subject of the devise produced or was capable of producing. If the rule invoked were applicable here, I take it that the fact that the express power to convert is given to the executors as such, and not to them as trustees, would not necessarily defeat its application, and inas[671]*671much as the complaint is silent concerning any income from the personal property and asks for no relief in that regard, the fact that the estate is one of mixed real and personal property might also be disregarded, and the case treated as a trust to convert unproductive real estate at the discretion of the trustees. In Rodman v. Fincke (68 N. Y. 239) unproductive real estate was involved. Referring to the principle applicable to gifts in trust to convert with a life estate and remainder over, Rapallo, J., spoke of it as one which “has been adopted,” implying, I presume, that it was applicable to the character of property there involved, but as, on its facts, the case was not one between life tenant and remaindermen, the learned judge said the principle was not applicable. As authority for the rule as he stated it, Judge Rapallo (p. 244) cited Yates v. Yates (28 Beav. [1860] 637, 639) and Livingston (sic) v. Gray (2 Sim. & Stu. [1825] 396.). Kilvington v. Gray involved personal property in certain of which the testator created trusts, and also directed that his personalty be converted into land as soon as convenient, and in the meantime the uninvested estate was to be invested in public stocks to be held upon certain trusts. It proving impossible to make the conversion, the court held that the life tenant was entitled to the income after one year from the testator’s death. I cannot regard Kilvington v. Gray as a case in point. In Searle v. Baker (L. R. [1900] 2 Ch. Div. 829, 832) Kekewich, J., refused to follow Yates v. Yates, saying that it was at variance with the later cases. Searle v. Baker was followed by Warrington, J., in Wilson v. Oliver (L. R. [1908] 2 Ch. Div. 74, 80). In Searle v. Baker the residuary estate, consisting of both real and personal property, was given to trustees for sale and conversion, the proceeds to be held in trust to pay the income to the testator’s wife for life, with express power to postpone conversion so long during the wife’s life as the trustees saw fit. The real estate was productive, but no conversion having been made, the widow was held entitled to the rents and profits. In the course of his opinion, after referring to passages which he had already quoted in a former case from Jarman and Lewin, Judge Kekewich said (p. 834): “I thought at first that there was a little ambiguity in Lewin’s statement (10th ed. p. 1161): ‘If a testator direct his [672]*672real estate to be sold, and the proceeds laid out and invested in trust for A. for life with remainders over, the tenant for life is entitled to the rents only of the estate from the testator’s decease.’ But now that I have threshed the matter out, I think that there is a good deal of truth in it; for in the case of real estate, if the estate produces nothing, the tenant for life can get nothing, whereas in the case of personalty he would get something upon the principle laid down In re Earl of Chesterfield’s Trusts ” (L. R. [1883] 24 Ch. Div. 643), a case similar in general principle to Williamson v. Williamson (supra).
There is one feature of the complaint to which I have not yet alluded. I refer to the judgment in the action to construe the will. (Pierce v. Thomas, not reported.) Whatever doubt may exist as to the soundness of the decision involved in that judgment, it must be accepted as the law of the case. Giving to this judgment the fullest effect to which it is entitled, it is not alleged in the complaint herein, nor could it properly be held, conceding the trust to sell was mandatory, that the executors were not vested with a discretion both as to the time and the terms of sale. The opinion of Mr. Justice Bischoff in Pierce v. Thomas clearly shows such to have been his view. The fact that this judgment determined that an equitable conversion was worked by the terms of the will does not affect the question of the plaintiff’s right to the relief she seeks. The doctrine of equitable conversion has properly been characterized as both artificial and arbitrary, and granting to it the fullest effect so far as devolution, succession and other matters affecting title are concerned, I cannot see how it can be applied so as, by presumption of law, to produce income from an estate where no income has in fact been earned, or the right to income, save as it might arise from an application of the doctrine. (See Hite v. Hite, 20 S. W. Rep. 778.)
The orders should be reversed, with ten dollars costs and disbursements, and the demurrers sustained, with ten dollars costs.
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Orders reversed, with ten dollars costs and disbursements, and demurrers sustained, with ten dollars costs.