| New York Court of Chancery | Aug 2, 1836
The allowance of the $1000, as pro. vided. by the will, is undoubtedly a scanty allowance for the support of the widow and the three children who are still tinable to earn any thing for their own support, considering the amount of the property to which they are presumptively entitled. But I do not see how this court can increase that allowance without making a new will for the testator. He has given to the widow all his household furniture and an annuity of $1000, and has also made a further provision by which she, or her personal representative in case of her death, will be entitled to one sixth of the whole residuary estate# and to a still greater share if either of the children should die without issue j the whole of which bequest to the widow is expressly charged with the support and education of the children. If the annuity, therefore, is not sufficient, she must resort to and anticipate a part of her share in the residuary estate for that purpose. Her share of the residuary estate, in which she has a vested interest which cannot be defeated by her death before the time appointed to make distribution, is already about $8000; and her share of the future accumulations will considerably increase the amount. The estate of the infants cannot, therefore, be resorted to for their support until the whole of
Again; the infants have no absolute interest or right to any other fund out of which maintenance can be allowed. The utmost extent to which this court is authorized to go in allowing maintenance out of a fund which may never come to the infant, is to allow it out of an estate which is given absolutely to a class of infants with benefit of survivorship. In such cases, as the chance of survivorship is equal although all may not in the end become sharers in the fund, the court has gone so far as to allow maintenance out of the fund for the benefit of all while the whole continued minors. The cases on this subject were all referred to by Lord Eldon in the case Ex parte Kebble, (11 Ves. 604.) And he there arrived at the conclusion that maintenance could not be allowed out of a fund which was given over to a third person, or to the issue of the infant, in case of the death of such infant before the time appointed for the distribution of the fund. The same question again came before him in Errat v. Barlow, (14 Vesey, 202,) and he expressly overruled the decision of Lord Thurlow, in Fendall v. Nash, (5 Vesey, 197,) as wholly indefensible in principle. And he again held that maintenance was to be allowed, against a direction for accumulation, in those cases only where it was for the benefit of the infants, the chance of surviving being equal; and where no other interests were to take effect upon any contingency, which would be defeated or affected by allowing such maintenance. I fully concur in the conclusion at which his lordship arrived, that this court has no power to allow maintenance to infants out of a fund which, upon the happening of the event contemplated by the testator in the bequest of the fund, will not belong to the infants but to some other person. It is hardly necessaiy to add, that these decisions of Lord Eldon Were followed by Sir Lancelot Shadwell, in the recent case of Turner v. Turner, (4 Sim. Rep. 430.)
No allowance for maintenance can therefore be made out of the principal of that part of the fund which presumptively belongs to the several infants, but which is given over