Hill v. Hill

2 Lans. 43 | N.Y. Sup. Ct. | 1870

By the Court

Marvin, P. J.

The surrogate declares that the true intent and meaning of the will is, that after paying the debts, '&c., the residue of the personal estate should be and remain in the' possession, custody and control of the widow, Mary Hill, for her own use, maintenance and enjoyment during her natural life, &c.; and the accounting of the executors was made upon this basis.

I think the surrogate has put the proper construction upon the will. The house, farm and the personal property are devised and bequeathed together. They were to be kept and used together for the maintenance and support of his widow, and as means therefor, and also as means in her hands, or under her power and control, for the bringing up, maintenance, support and education of the infant children, &c. These children are to be brought up on the farm. They are to labor, &c., and the costs and expenses of bringing them up, supporting and educating them, over and above the value of their labor and services, are directed to bo borne by his wife and defrayed by her out of his estate or the profits and income thereof. By the whole scheme of the will the personal property was given to her, charged with certain trusts. Some of the duties imposed upon her did not arise and become operative, as the contingencies contemplated did not arise. The children, who were infants when the will was made, had attained full age before the decease of the testator, so that the provisions relating to maintenance and education became inoperative. But the purposes to which the testator devoted the property were not limited to these children. One of these purposes was the maintenance and support of the widow. The testator directs that his wife, during her life, shall, with the advice of his executors, control and manage the estate for her own benefit and that of his children, and for the purposes intended and mentioned in the will; and that she from time to time, and as fast as she reasonably can, consistently with the provisions of the will, give and advance to his children John and James, when they respectively attain the age of twenty-one, and to Mary and Cynthia, when, &c., such part or parts of the shares or portions of in or out of his estate above given them respectively, as she and his executors shall deem practicable and reasonable under the provisions of the will. As to the personal property, it was given to Mrs. Hill for life, for certain purposes specified. She holds it in trust, and the executors, as such, after paying the debts, &c., have no interest in or control over the residue. The management of this property is not involved in this accounting. If Mrs. Hill, the widow, is not managing or using the property, as was intended by the 'testator, proper remedies may be resorted to, for the protection of the property, for the benefit of those to whom it is given upon the termination of the estate of Mrs. Hill. The inventory of the property shows its value to be some $2,000, and it consists mainly of household furniture and farming implements, and some stock on the farm. By the will she was to use and manage the farm and occupy the lands. I think it was the intention of the testator that his widow should possess and use the property, in specie. The general rule undoubtedly is that when there is a general bequest of a residue for life, with a remainder over, the pro* • perty must be sold and converted into money by the executor, and the proceeds must be invested in permanent securities, and the interest or income is only to be paid to the legatee for life. Chancellor Wahvorih so stated the general rule in Covenhoven v. Shuler (2 Paige, 132). He recognizes the rule in Clark v. Clark (8 Paige, 160); also, in Spear v. Tinkham (2 Barb., Ch. R., 214), where he cites How v. Earl of Portsmouth (7 V., 137); Fearns v. Young (9 id., 549). I have looked into these- cases, and they are all unlike the present case. There was no difficulty, in them, in carrying out the general principle without doing violence to the intentions of the testator. In the present case, had the testator died soon after the making of his will, during the minority of some of hia children, a sale of the personal property would have defeated the clearly expressed intentions and directions of the testator. To deprive the widow now of the personal property, mainly agricultural implements and household furniture, would defeat the intention of the testator. It was to her that the direction was given,- with the advice and assistance of the executors, to give and advance to the children, as they should attain the age of twenty-one, such part or parts of the shares or portions of in or out of his estate given to them respectively, as she and his executors should deem practicable and reasonable under the provisions of the will. She is charged with this obligation. In short, I think there was no error in the decree in refusing to charge the executors with the residue of the personal property. It was' to remain with the widow, or be delivered to her.

Several minor errors are alleged by the appellant in the accounting. I have examined them, and do not think that the objections taken by the appellant are well founded.

The decree of the Surrogate’s Court should be affirmed, with costs, to be paid out of the estate.

Decree affirmed.