16 N.Y.S. 716 | N.Y. Sup. Ct. | 1891
We think the learned surrogate gave the correct construction to the clause of the will providing for the testator’s widow. It gives her the right to possess and enjoy the rents and profits of the entire estate during her natural life, and it further provides that if the use and profits are not sufficient for her support a sale thereof may be made for her support. The remainder over, after the decease of his wife, he gives to his children and ■grandchildren, and appoints his wife one of the executors of the will. Ho trustee of the fund is provided for during the life-time of the wife. Who but the widow is to determine how much she may need for her support? and if she is to decide, she must necessarily have possession of the corpus of the estate. Smith v. Van Ostrand, 64 N. Y. 278; Flanagan v. Flanagan, 8 Abb. N. C. 413; In re Woods, 35 Hun, 60; Thomas v. Wolford, (Sup.) 1 N. Y. Supp. 610.
This disposes of the question as to the money used by the widow for her support, including the amount invested in the purchase of the house and lot; for, if she was entitled Jo the possession of the funds of the estate for her support, she was given the power to decide as to the propriety of the purchase of a dwelling-house to reside in. It appears from the case that the house and lot she purchased were, after her death, sold pursuant to judgment in an action of partition, and the proceeds divided among the testator’s heirs, including the contestants, (appellants.) The judgment was a sufficient voucher, and the amount thereof was properly allowed. The evidence of the indebtedness of the" estate of Luther A. Wing is not very satisfactory. There is, however, some evidence tending to show that the testator was at the time of