In re Hunt

The contention of counsel for testator’s widow that, under the will, she takes an absolute title to the estate of her husband if she thinks proper to accept it, does not, in my opinion, find any support in that instrument.

The testator does not, in express terms, give anything to her absolutely, but gives her the income of all his estate, and as much of the principal as she thinks proper for her support and for the care which she shall give to their son. The language of the will in this respect is plain, and the testator’s intent is reasonably clear. The income, and as much of the principal as she thinks proper, are given her, but both are given for specific purposes, and these are, first, for her support, and, second, for the care which she shall give to the son. So long as her expenditures of income and principal are fairly within the purposes mentioned in the will, they cannot be questioned, for her power to so expend appears to be unlimited; but, the purposes being clearly specified, she has no right to divert the income to other uses than those specified in the will, thereby making resort to the principal necessary for her support and for the care of the son. That this construction is correct is also apparent from the circumstances existing at the date of the will, and from the trust created therein for the benefit of the son upon the death of the widow. When the will was made she was about 72 years of age, having in the course of nature but a few years to live. The son was then about 45. He was, and probably always would be, unable to care for himself, by reason of his feeble mental condition. He had always lived with, and had been cared for by, his parents. Provision was made for his care by the widow after the death of the testator, and by trustees after her death. The testator was solicitous, not only for the support of the wife, but for the care of the son. It cannot be that it was his intention to permit his wife, under the power he had given her to use the principal of the estate, to divert it from the purposes mentioned in the will, so that upon her death there would be nothing, or but little, left for the benefit of the son. That this was not his purpose is clearly shown by the will, whereby upon the decease of his wife he gives the residue of his estate to Gifford and Rathbun, in trust to use all the income and as much of the principal as they think best for the support, maintenance, and care of the son.

The surrogate, in the order, appealed from, has required the executrix to file a supplemental account showing in detail her transactions with the principal of the estate, an itemized statement of all the income received, and a statement in detail of the payments made for *541the benefit of the son and for her own support. If the provision requiring a statement of expenditures for the benefit of the son and for her support was an attempt to procure an accounting by the widow of her expenditures of income as a life tenant, it could not be upheld, but that is not the purpose of the order. The claim is that the estate has been used by the executrix for purposes not authorized by the will, and the fact that she is a life tenant, entitled to use the income and as much of the principal as she thinks proper for the purposes mentioned in the will, cannot shield her from an accounting in her trust capacity, so that her management of the estate as executrix, and its condition, may be shown. I think, under the circumstances appearing here, the order appealed from was properly made, in order that it may be ascertained if any part of the estate has been diverted from the purposes specified in the will. ■

It is also urged that the respondent, Rathbun, has no such present interest in the estate as to justify the further account at his instance. He was recognized as having an interest by the executrix in her petition for an accounting, and by her citing him to attend upon it. He has a contingent interest as a residuary legatee under the will. Under Code Civ. Proc. § 2727, “a person interested in the estate” can make an application to compel a judicial settlement of the accounts of an executor, and the expression “person interested,” where it is used in connection with an estate, includes a person entitled contingently to share in the estate as legatee. Id. § 2514, subd. 11. If, as appears clear, Rathbun has such an interest as to give him a right to compel the executrix to account in the first instance, his interest will also qualify him to ask for a supplemental account when brought into court upon the citation of such executrix to attend her accounting.

The order should be affirmed, with costs to the respondent, Rathbun, to be paid out of the estate. All concur.