Hull v. Hull

122 Mich. 338 | Mich. | 1899

Grant, C. J.

(after stating the facts). Counsel do not disagree about what the complainant is entitled to receive from the estate. They concede that the word “comfort” means more than “support,” and includes “whatever is requisite to give security from want, and furnish reasonable physical, mental,'and spiritual enjoyment.” They concede that she is not limited to the income from the estate, but is entitled to encroach upon the principal in so fqr as it may be needed for her support and comfort. The sole question of dispute is, How, when, and by whom shall it be determined what is “needed for her support and comfort ? ” There is no express provision in the will upon this point. The learned counsel for complainant contends that when the executors had erected the monument, and paid the debts and expenses of administration, the remainder should be turned over absolutely to the possession of the widow, to'be used by her for her support and comfort, without distinction as to the use of principal and income, and that she is the sole judge of her needs. If this be so, then the duty and authority of the complainant as executrix would cease from the time that she and her co-executor thus turned the property over to her and filed their account with the probate court. It would also follow that the duty and authority of her co-executor was suspended from that time until her death, when it would be his duty to take possession of what property she had left, and see to its distribution. This, clearly, would be in direct violation of the will, which makes it the duty of her co-executor “to continue right along as executor, and to see that the whole of this will is carried out to the letter.” Counsel for complainant asserts that she and her bondsmen would be liable for any misuse of the property during that period. This amounts to a concession that she is still acting as executrix, for her bondsmen are only liable for her acts as executrix, and not for her acts as legatee. If she be liable as executrix, then her co-executor is also liable, for he is required to act right along with her. The fair construction of this will is that the testator placed this property under the control of his executors and trustees during the lifetime of the complainant, to see that its provisions, made for her support and comfort, be carried out. The will neither expressly nor impliedly requires her to apply, to the probate court for the authority to use any of the principal for her support and comfort, nor does it confer upon that tribunal the authority to determine her needs. The probate court has no jurisdiction over such matters, unless it is conferred by the will. She is only authorized to have it as needed for that purpose. There must be some authority to determine when it is needed. This authority is not conferred upon her. The clause appointing his executors is, we think, sufficiently clear to show the intention of the testator upon this point. He appointed his wife and nephew his executors, directing them to carry out his will to the letter, and clearly contemplates their continuance in that capacity until the death of his widow. One of the duties imposed upon them by the will is to transfer to her, at any time when the income is not sufficient, such of the principal as, in their judgment, may be needed for her support and comfort. Both have given bonds for that purpose, and are liable only for an abuse of the trust reposed in them. They should from time to time, as required by law, file their accounts for allowance by the probate court. Should the executors disagree as to the amount needed, undoubtedly either party might apply to the proper court to determine the question. It seems highly improbable, however, that any such exigencies will arise, for all the parties interested are evidently disposed to act in a spirit of fairness and good will, and to carry out the wishes of the testator as expressed in his will.

The decree will be modified in accordance with this opinion. No costs will be allowed to either party.

The other Justices concurred.