Opinion
May, 1936.
Present — Lazansky, P.J., Hagarty, Carswell, Davis and Johnston, JJ. [ 155 Misc. 826.]
In an accounting by executors, the questions arose as to whether the taxes and other expenses of certain real estate held by the executors in trust should be apportioned between principal and income or should be charged solely to income; and whether the net proceeds of a sale of a portion of such real estate should be so apportioned. The property was productive at the date of the will and of the death of the testator, but became unproductive about a year after the testator died and more than nine years after the will was executed. It was held that such sums were payable out of income and the executors were surcharged in the decree with such amounts. The net proceeds of the parcels already sold were held to be principal. An examination of the will and the surrounding circumstances lead to an acceptance of the views of the learned surrogate and an approval of the reasoning and conclusions in his opinion. (See 155 Misc. 826.) As to the apportionment between principal and income of the property unsold, that question seems to have been held in abeyance, to be determined by the surrogate after such sale has been made. In so far as an appeal is taken therefrom, the decree of the Surrogate's Court of Kings county is unanimously affirmed, with costs to respondent, payable out of the estate.