Phelps' Executor v. Pond.

these dispositions may unquestionably each be made separately, what prevents their being made in combination? No principle of law or statutory provision is violated by so doing. This is precisely what is done by this will. The whole estate is converted into personalty, and the absolute ownership suspended for ten years, if the two lives selected should continue for that time. Legacies are then given, and the payments so adjusted as substantially to absorb the income as fast as it should accrue. This adjustment is not, and probably could not be, very exact and precise. In some of the years, the payments would be greater than the income, in others less; but these variations are not such as to affect the inference to be drawn as to the testator's object and intent.

There being no express direction to accumulate the surplus income, if at any time a surplus should remain, I see no reason why such a direction should be implied. It is true, it would appear, from the statement referred to, that, without such an accumulation, the aggregate income for the ten years would not be equal to the payments to be made during that time. But this statement is based upon the assumption that real estate worth over a million of dollars would continue to yield during the entire period an annual income of only $34,000, while the testator may well have supposed that this would be sold and the proceeds invested so as to yield a much larger sum. I see nothing whatever to repel the supposition that the testator expected the annual income, without any accumulation, to be about equal to the annual payments to be made during the ten years. If this was his expectation, the will in this respect would be unobjectionable. Any accidental surplus, upon that assumption, would be so much assets undisposed of by the will.

But, even if it be assumed that the testator intended the surplus income, if any, to be accumulated, and carried forward to the end of the ten years, the result would be the same. This implied direction would be void, but no other provision of the will would be thereby affected. Nothing whatever is made to depend upon such an accumulation. Every provision

Phelps' Executor v. Pond.

could be executed as well without as with it. Its effect would be simply to increase slightly the ultimate fund to be distributed among the residuary legatees. It would be the duty of the executors, therefore, whether an accumulation was or was not intended, to distribute any surplus of income accruing in any year, beyond the payments for that year, among the persons. entitled to it. It becomes necessary, then, to inquire, to whom this surplus would belong.

By section 40 of the statute concerning the creation and division of estates (1 R. S., 726), it is provided, that, when the absolute ownership, or power of alienation, of real estate is suspended, and the rents and profits in the meantime are neither disposed of nor directed by any valid provision to be accumulated, "such rents and profits shall belong to the persons presumptively entitled to the next eventual estate." It has been held, in some cases, that this section applies to the income arising from personal property, the absolute ownership of which is suspended by force of the statute concerning accumulations of personal property and expectant estates in such property. (1 R. S., 773; Haxton v. Corse, 2 Barb. Ch., 518; Craig v. Craig, 3 id., 93; Kilpatrick v. Johnson, 15 N. Y., 322.) In none of these cases does the question appear to have received much consideration. As an original question, it would admit, perhaps, of considerable doubt.

But it is unnecessary to pass upon this question here. If section 40 of the statute concerning estates in lands is applicable at all to the income of personal estate, it can only apply to a case where that incone is derived from some specific fund, or, at least, from property so situated that its income can be readily distinguished from that of all other property. Neither in terms nor in reason is it applicable to any other case. The statute is founded upon the presumption that the donor of property may naturally be supposed to intend that the income should go to the same person to whom he had given that out of which the income arises. Nothing, therefore, can properly be held to pass under it but income which proceeds from the specific property in which the future interest exists.

Phelps' Executor v. Pond.

The legacies in this case amounted to more than a million and a half of dollars. Very little of this amount was payable until several years after the testator's death, and, in the meantime, the fund out of which it was to be paid was productive of income. No interest whatever is given by the will to the residuary legatees in that portion of the estate which is devoted to the payment of the specific legacies; and yet, if the statute is held to apply, those legatees would enjoy the benefit of any surplus income which might accrue from that, as well as the residue of the estate. It would be impossible to distinguish between the income of the fund belonging to the specific legatees, and that derived from the residue of the estate, as the legacies were payable out of both income and principal. The case cannot, therefore, in any view, be brought within the provision of the statute; and hence, if, after deducting the payments for any year from the income of that year, a surplus of income should remain, that surplus would belong, not to the residuary legatees, but to the next of kin; and the accounts of the executors, for past as well as future years, should be settled upon that basis.

It was held by the Supreme Court that the executors had no right to anticipate, by a rebate of interest or otherwise, the payment of any of the legacies given by the fifth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and nineteenth clauses of the will. This, I think, is correct, so far as the installments to be paid prior to the distribution of the estate, under the twentieth clause of the will, are concerned; for the reason that it was the plain intent of the testator that these installments should be paid from the income of the estate, and to permit them to be anticipated would tend, to some extent, to defeat this intent. This reason, however, has no application to subsequent installments. Upon the distribution among the residuary legatees, the whole scheme of the will will have been consummated. No application of income after that time was contemplated, or none with which an anticipation of the payments would at all interfere. I see, therefore, no objection whatever to any fair arrangement which the execu

Chamberlain . The People.

tors may see fit then to make, for anticipating the remaining installments of the legacies.

There are, I think, no other questions which it is important to consider. The judgment of the Supreme Court will only require one or two slight modifications to make it conform to the foregoing principles; and, in all other respects, it should be affirmed.

All the judges concurring,

Judgment accordingly

CHAMBERLAIN v. THE PEOPLE.

A witness who testifies falsely as to a material fact, is guilty of perjury though he was not a competent witness in the case, and was especially inadmissible to prove the particular fact to which he testified.

So held, where, in an action for divorce, the husband-his wife having borne a child-testified that he had no sexual intercourse with her during marriage.

It seems (per JAMES, J.,) that, in an action between husband and wife, either party is, since the amendment to the Code in 1857, a competent witness against the other, in general, though inadmissible to prove the particular fact of non-intercourse.

Upon an indictment of the husband for perjury, after divorce, the wife is a competent witness to prove that she has had no sexual intercourse with any other person.

WRIT of error to the Superior Court of Buffalo. The prisoner was indicted for the crime of perjury, and, in February, 1859, was tried, convicted and sentenced to state prison. The indictment charged that the prisoner commenced an action against his wife, Margaret Chamberlain, for a divorce, on the ground of adultery; that the summons and complaint therein were personally served upon her; that the action was thereupon referred to a referee, to take proof of all the material

Chamberlain v. The People.

facts charged in the complaint; that, on the hearing before the referee, the prisoner was sworn as a witness in his own behalf; that, on such hearing, it became a necessary and material inquiry whether the prisoner ever had sexual intercourse with his wife after their marriage; and that the prisoner knowingly, corruptly and falsely swore and gave evidence before the referee that he never had sexual intercourse with his wife after his intermarriage with her.

On the trial the judgment record, granting a divorce in the said action, was produced and proved. The referee therein was then sworn as a witness on the part of the prosecution, and was asked "to state what the prisoner testified to on the reference of said action for divorce before him." The question was objected to, on the ground of its immateriality, and, also, because the prisoner was not competent to be sworn therein, and anything testified to by him was not material or admissi ble, and perjury was not assignable thereon. The objection was overruled, and the prisoner excepted. The witness then testified that the prisoner swore on the reference that he never had sexual intercourse with the said Margaret during the period of their marriage. The marriage of the prisoner and Margaret was proved to have taken place February 9, 1850, and it was also proved that she was delivered of a child in January, 1851.

The prosecution then called Margaret as a witness, and asked, "Have you ever had sexual intercourse with any person other than your husband?" This question was objected to, on the ground that "she was not permitted to testify to any facts proving or tending to prove what transpired during coverture in respect to that subject, and also that such question and her answer thereto were immaterial." The objection was overruled, and the prisoner excepted. She answered, "I have not." Other evidence was given by the prosecution to prove that the prisoner had sexual intercourse with Margaret, after their marriage.

A bill of exceptions was tendered, and the same heard at the general term, where the conviction was sustained: