Forman v. Whitney, 2 Abb. Ct. App. 163

Forman v. Whitney

2 Abb. Ct. App. 163 | NY | 1865

By the Court.

Davis, J.

This appeal is wholly without merit. The only error of the court below was in not awarding costs to the respondent.

The testator, leaving a property valued at more than twenty thousand dollars, made no provision for his widow, except the annual interest of three thousand dollars. This he directed to be paid to her by his executors, or so much thereof as they “ should deem necessary to her comfort.” She was old and unable to support herself. The judge before whom the action was tried found that she needed for her comfort the whole of the annual interest bequeathed to her. But her daughters, who were executrices of the will and residuary legatees, entitled to take whatever could be saved out of the interest provided for the old lady, had furnished to her, during a period of more than two years, the munificent sum of forty-five dollars. The judge found, also, that the trustees had made no inquiries into *166her wants and necessities; that they had not answered her applications for money, and had fixed no amount, nor time of payment of any sum which in their discretion she was entitled to receive; and that the payments which made up the pittance above named had been “fitful, uncertain and insufficient.”

Such an apparent abuse of the trust confided to them by the will, should demand a clear explanation and valid excuse, without which it would seem to have been dictated by a heartless avarice looking only to the future interests of the residuary legatees. The excuse put forward is found in the fact that, under an agreement between the plaintiff and her son, she was entitled to her board and lodging in his house so long as she chose to remain there; and in the assumption that nothing further could be necessary to her comfort but suitable clothing, for which the old lady testified she had never suffered—though she naively added, “ I might have looked better.”

This excuse was altogether too narrow. The' comfort for which the testator provided was not bounded by a mere quantum sufficit to eat, to drink and to wear. The most advanced old age demands, while reason remains, something more than these for its continued enjoyment of life. The word embraces whatever is requisite to give security from want, and furnish reasonable physical, mental and spiritual enjoyment. It implies, says Webster, “ some degree of positive animation of the spirits, or some pleasurable sensations derived from hope and agreeable prospects.” Mrs. Forman was entitled to feel that sense of independence which would flow from the fact of having a sure income adequate to her few and limited wants; to feel at liberty to go and come in unrestricted freedom, and te visit her friends and relatives at her own pleasure, with no depression of spirits from the idea that she is or may be a burden to them. In short, to possess those nameless currents of enjoyment which take their rise in the assurance of money in the pocket and more to come.

Instead of this, she has had under her husband’s will forty-five dollars, and a lawsuit! the latter carried through all the courts to this ultimate tribunal, while, in the mean time, she has been rapidly verging on the venerable age of eighty years. *167One might almost doubt the filial affection of such trustees, if their good faith were not solemnly averred in the pleadings.

I am of opinion that the judgment should be affirmed, with costs of this appeal, and with ten per cent, damages for the delay, to be computed on all moneys now due under the decree.

All the judges concurred,

Judgment affirmed, with costs, and ten per cent, damages.