Thomas, S.
I concur in the opinion of Surrogate Vamum, rendered when this matter was before him, that on the face of the will the annuity directed to be paid to the widow does not bar her claim to dower. Matter of Grotrian, 30 Misc. Rep. 23. At that time an order was made appointing appraisers. A decree was thereafter made by Surrogate Fitzgerald directing a sale of part of the real estate of the testator, and the present application is for a decree directing as to the disposition of the proceeds of such sale. The widow is an incompetent and appears by her committee. It is now shown that the amount directed to be paid to the widow exceeds, and has at all times since the death of the testator, in 1892, exceeded the entire net income of his estate. It is not now necessary to determine whether this payment was an annuity or a trust provision. Cochrane v. Schell, 140 N. Y. 516. The ' committee of the widow asks that an order be made directing him to execute an instrument on her behalf electing to take from the proceeds of the sale of the property sold a gross sum equivalent to the present value of her right of dower, and that such gross sum be paid to him, leaving the balance, if any, in the hands of the executrix to raise further income for her. Such an order can be made upon proof that it will be for the best interest of the widow (Code C.P., § 2793),and if her right of dower is legally paramount to the provision for her contained in the will. I must determine both of these questions contrary to the contentions of counsel for *259the widow’s committee. The annuity or trust sum directed to be paid to the widow is, in fact, though not so expressed in the will, a gift to her for her life of the entire income of the estate. H it had been so expressed it would have been a legal bar to all claim of dower, as being manifestly inconsistent with dower. Matter of Zahrt, 94 N. Y. 605. She is to have the entire income, and whether her title thereto is in part because of the will or in part independent of the will it is not now important to determine. If she has the full income, and is to retain it, there is no propriety in giving her a part of the principal in lieu of a part of the income not given up, except as the transaction diminishes the estate from which income is to be obtained. There is also no proof that such a disposition would be to the interest of the widow. As a matter of discretion I will not permit the committee to execute the instrument accepting a gross sum out of the estate. I also agree with Surrogate Vamum that the pecuniary legacy to Louise Mundt is not charged upon the real estate, and cannot be protected in this proceeding. Matter of Grotrian, supra. The fund, after payment of the amount due to the petitioner and the costs of the proceeeding, will be directed to be paid over to the executrix to be held, invested and paid out in pursuance of the directions contained in the will of the testator as to the real estate from which said fund was derived. The rights of the other legatees cannot be determined until they become due, which will not be until the death of the widow. For this reason the claims of counsel for such legatees as against their clients cannot be enforced in this proceeding. The balance of the claim of the petitioner, with interest and his taxable costs, and an allowance to the special guardian for the infant parties not exceeding taxable costs, to be hereafter fixed, and the taxable disbursements of all the parties will be paid out of the fund. The great loss caused by the sale and the necessary costs of this proceeding could have been averted by a small sacrifice on the part of any of the adult parties in interest. Without attempting to apportion the fault I will refuse any costs, except as above stated, to any of the parties in interest. Settle decree and tax costs on notice.
Decreed accordingly.