Opinion
July, 1912.
David M. Neuberger, for trustee.
Henry M. Dater, for Ella I. DeNyse, contestant.
The residue is devised with the following provisions:
"And I direct that the said trustees collect the rent, interest, profits and income of the said property and after paying all necessary expenses, then to pay the net amount of interest, profits and income remaining as directed in the following paragraph.
" Eighth. I direct that the trustees hereinafter named pay to my sister, Mary Heist, the net interest, profits and income referred to in the preceding paragraph during her natural life.
" Ninth. Upon the death of my said sister, Mary Heist, I then direct that the trustees hereinafter named turn over absolutely to Ella Denyse, the daughter of my nephew George Denyse, all of the said trust property mentioned in the preceding two paragraphs."
The accountant is the sole trustee. Expenses have been incurred by her in defense of the corpus of the trust and in an endeavor to increase the same. The claim that these expenses should be charged against the income of the trust is made upon the testator's provision that the trustees should "after paying all necessary expenses" pay over the net income.
It is argued that the words "all necessary expenses" contemplate every disbursement conceivably required in the discharge of the trust, and the contestant insists that the same meaning is to be derived from the provision that "all of the said trust property" shall be turned over to the remainderman.
It is not manifest that the testator intended by the words "all necessary expenses" any other expenses than those necessary to the collection and administration of the income. The stress which is laid upon the word "all" loses much force when it is seen that the habit of the will is to superfluously apply the word throughout the instrument.
There is a gift to "all the heirs" of the decedent's brother. The gift in trust is "of all the residue." The trust is declared to be subject to "all the conditions" prescribed in the will.
The word, when used to qualify the phrase "necessary expenses," should receive no emphasis in the particular instance greater than in the other cases where it has no conceivable meaning. If, however, it should be given the significance on which the contestant insists, it would be balanced by the word "necessary." The expenses referred to are those which are necessary to the collection of the income and its payment.
The phrase "all necessary expenses" is primarily, if not inevitably, limited to the processes intended and required by the specific provision in which it is found. It is as if the testator had directed that the trustees collect the income and pay the same after all the expenses "necessary" to the operation of collection and payment. It is not imaginable that the testator intended to burden the life tenant's income with the expenses ordinarily chargeable to the principal any more than that he intended that the income should pay the expenses which the executor as such incurred.
The words used lend themselves to an argument that expenses of probate were contemplated as readily as they could encourage the claim now made by the contestant.
Commissions on the receipt and application of income are chargeable only upon the income.
Costs of the accounting will be charged equally upon income and principal.
Findings should be submitted in accordance with these views.
Decreed accordingly.