Stilwell vs. Doughty. In the matter of the estate of Samuel Stilwell, deceased, 2 Brad. 311

The Surrogate. The testator’s will contained the following clause: “ Item—I give, devise, and bequeath to my wife, Elizabeth, during her life, and for her use, the house and appurtenances where I now reside, and the clear income of all my real estate, except the land in Broome County.” An assessment for a sewer in Chatham Street has been laid upon a part of the premises devised, and a difference has arisen as to the payment, and by whom this charge is to be borne, by the life-tenant or the remainder men.

The will gives the widow the “ clear income and by that expression I do not understand the gross income, free from any charges, but the income remaining clear after the payment of the current expenses necessary to keep up the estate—the net revenue or produce of the property. To sustain any other construction, to suppose that the widow was to take the income and let the taxes accumulate until, perchance, the estate were sacrificed, would require words of the clearest and most indisputable import, directions of the most explicit and unequivocal character.

An extraordinary assessment, benefiting the fee, is, without ■ doubt, not such a usual charge as should be borne in toto corpora by the life tenant. On the supposition of a benefit accruing to the estate, by the improvement for which the assessment is laid, the life tenant has only the use of the improvement to the extent of the annual value, and not of the gross charge. So, on the other hand, the remainder men have not the present use, and will derive no advantage until the estate comes in possession.

It is equitable the parties should bear burdens proportioned to their interests; and I tbinlr the life tenant should pay the annual interest, on the assessment, and that the principal should be charged against the remainder men. I see nothing in the authorities against this rule; and it seems to me the most equitable mode of apportionment, in the absence of proof on which to base any other ratio of adjustment more appropriate.