14 N.Y.S. 604 | N.Y. Sup. Ct. | 1891
The learned surrogate, in denying this application, placed his decision not on grounds of discretion, but on the ground that under the will Mary Swan has a.right to the principal, as well as the interest, of the estate after payment of the debts and of the legacy to Erskine. The appeal, therefore, requires us to construe the will in this respect. It gives to Mary Swan “ the use and benefit of all my estate, real and personal, during the term of her natural life, or as long as she remains my widow.” It excepts, however, $500, to be paid testator’s son, Erskine, when he becomes 21. This has been paid. It declares that after the death or marriage of Mary “the balance of my estate” shall be equally divided between his son, Erskine, and his daughter, Mary Etta, only that in case of the marriage of said Mary she be first paid $200 out of the balance. It authorizes the executors to sell “real estate, farming utensils, and stock, household furniture and plank-road stock, to pay off debts, and put the balance ‘fit interest and to keep it at interest till the property is divided as above specified. ” It will be seen, then, that the interest which the widow, Mary, was to enjoy was to cease at her death or marriage; but on her marriage she was to have $200 before the residue was divided between Erskine and Mary Etta. That clause evidently shows that the testator had in mind that a certain sum at least would be kept of the principal of the estate. So, also, the item giving $500 to Erskine when he