Dickerman v. Dickerman

The executor is, perhaps, correct in saying that the widow did mot take a fee, and that there was a valid remainder over after her *587death. (Although on that point see Campbell v. Beaumont, 91 N. Y., 464.) But that does not settle the question. The testator gave the widow the use, interest and income of all his estate, after payment of debts, etc., during her natural life.' And his will stated that in addition he gave her and authorized her to use “ such part of the principal of my said estate as she may, from time to time, in her judgment require to properly support and maintain her in manner and style suitable for one in her station in life.” There is nothing in the will inconsistent with this clause, which plainly leaves it to the judgment of the widow to determine how much she needs. The executor urges, to the contrary, the clause saying that this is in lieu of dower. But that clause is important to relieve the real estate. He also urges the clause that the widow’s funeral expenses are to be paid from the principal. But clearly the widow can, in exercising her judgment, leave enough of the principal for this purpose. He also urges the gift over of the rest, residue and remainder. But, on his own' construction, the surrogate can allow to the widow payments from the principal. Therefore, the gift over does not deprive her of some part of the principal. The •only question is, whether she is to determine how much she' requires, or whether the surrogate is to do this.

There is no mistaking the language of the will. And it was highly proper. The widow is about sixty years old; the estate is bout $5,000; the annual income about $170. The testator evidently saw that the income might not be enough for his wife. He had confidence in her judgment, and he was willing and desirous that she should use what m her judgment she required of the principal. There are probably no children of the testator, as the remainder is given to nephews and nieces.

Whether that remainder is valid, or whether the widow takes a fee, and can dispose of the principal (or whatever may remain), by ■deed or will, is not a question now before us. It is enough that the testator has declared that she may use such part of the principal as in her judgment she may from time to time require. She was under no obligation to render any account to the surrogate of her expenses; and the requirement of such an account was manifestly improper. Nor is the widow to be restricted to receiving a reimbursement of moneys from time to time expended by her. *588She is entitled to have what she requires, in order to use it; not merely to reimburse what she has used of her own money.

The decree of the surrogate should be reversed. The executor should be required to pay the widow $850, the amount she required for past expenses, and to pay to her the amount she requires from time to time, which, at present, she states to be $300 each half year. "We think, also, from the position which the executor bears to the-■persons in remainder, that he should be personally charged with the-costs of the widow in the Surrogate’s Court and on this appeal.

Decree reversed, executor allowed to pay petitioner according to-opinion ; costs of petitioner before the surrogate and on appeal to be paid by executor personally.- Order to be settled by Learned, P. J.