63 A.2d 179 | Vt. | 1949
This is a petition for a declaratory judgment brought by the trustees under the will of George A. Leonard, late of Fair Haven, Vermont, asking for interpretation of the fourth clause of Mr. Leonard's will, which is as follows:
"Fourth: I hereby give, devise and bequeath unto my trustees hereinafter named and appointed, their or his successor, or the trustee or trustees for the time being, referred to as said Trustees, all the rest, residue and remainder of my property, real, personal and mixed, of which I may die seized or possessed, of whatever the *441 same may consist and wheresoever situated, in Trust, to hold, manage, lease, invest and reinvest the same and out of the income and interest and income derived therefrom after deducting the costs of keeping the real estate in good repair, and the costs of insurance on the same, and the taxes on both the real and personal estate, to pay the same to my said wife during her life in equal quarterly payments, or more often if practicable. And in the event that the income and interest shall not be sufficient for the comfort of my said wife in sickness and in health, I hereby authorize and empower my said Trustees to pay to my said wife so much of the principal of said Trust fund as may be necessary for the comfortable support and care of my said wife in sickness and in health."
The will directed that upon the death of the testator's wife, the principal of the trust fund and property be distributed equally to three nieces, who were the only next of kin surviving him at his death.
The sole question is whether the trustees should compel the testator's widow to use her own property, either of income or principal, or both, before the trustees disturb the corpus of the trust for her comfortable support and care.
The appellants cite only five cases in support of their contention that the widow should first use so much of her own property as she might need over and above the income from the trust.
These cases are all easily distinguishable from the case here because in each instance they make the need for care and support the controlling factor rather than the insufficiency of income from the trust fund to furnish comfort and support.
In Bridgeport City Trust Co., Trustee v. Beach et al,
In Peckham v. Newton,
In Suesens et al v. Daiker et al,
In re Hogeboom's Will,
In Matter of Martin,
In reaching its decision that the beneficiary was entitled to have applied a portion of the principal of the trust fund only in event that the income supplemented by her independent income was insufficient to provide for her proper care, support and comfort the court carefully distinguishes that case fromRezzemini v. Brooks,
In commenting on that case the court in the Martin case, 269, N Y 305,
The lower court found that at the time of Mr. Leonard's death the homestead premises occupied by his wife and himself were owned by them as tenants by the entirety. It is a very comfortable home, in good repair, and is now owned and occupied by the widow. Mr. Leonard and his wife owned bank accounts, bonds and other personal property jointly with the right of survivorship of approximately $30,000.00 in value, the sole ownership of which was acquired by the widow at Mr. Leonard's death. She also received $2000 life insurance on his life. They had no children. He was 81 years of age when he died. She is now 85 years of age, is nearly blind and very deaf, which makes it necessary for her to have the services of a full time general housekeeper, and the probabilities are that due to her advanced age and infirmities her expenses will increase and that the income from the trust fund will not be sufficient for her comfort, support and care in sickness and in health. In fact during a recent illness she paid out $1800 from her own funds in addition to the income received from the trust fund.
The question comes down to the intent of the testator in the matter. What he intended is to be gathered from a consideration of the whole instrument creating the trust, the nature and object of the trust and all other circumstances which have a bearing on the question. In re Estate of Boutwell,
The judgment of the court below ordered the trustees to pay the income and interest from the corpus of the trust here in question and so much of the corpus itself as may be necessary for the comfortable support and care of Amelia M. Leonard in sickness and in health, without regard to her ability to make such provision *445 for herself in whole or in part from her own separate estate by way of either principal or income or either or both.
The primary purpose of the testator was to provide for the comfort and support of his widow in sickness and in health. The authority which he gave his trustees to use the principal of the trust for that purpose was not conditioned upon the need of his widow but upon the insufficiency of the income from the trust to meet the expense of his widow's comfort and support. We have no hesitancy in affirming the judgment of the court below.
Judgment affirmed.