39 Misc. 126 | N.Y. Sur. Ct. | 1902
Sarah Maria Parsons died, leaving a last will and testament, which was duly admitted to probate, and William Henry Parsons, her'husband, qualified as executor.
William Henry Parsons died on the 27th of June, 1902. It appears that he made several accountings as executor during his lifetime. In this proceeding his executors file the account of his-proceedings as shell executor. Said account is objected to, and the sole- question for consideration turns upon the construction' of the' following provisions of the will of Mrs. Parsons: “ I give and bequeath to my dear husband, William Henry Parsons,
The executors, in their account, do not, therefore, account for any of the income received by William Henry Parsons, on the theory that it belonged absolutely to him, and they credit themselves with the sum of twenty-seven hundred and eighty-five dollars and forty-seven cents ($2,785.47), being the amount expended by him from the principal for his comfort and support, claiming that he had a right to do so under said will, i Objections were filed to this account, contending that the executors should account for the income which William Henry ¡Parsons received in his lifetime, and that he had no right to dip into the principal of this estate unless the income thereof, or his own estate, were insufficient for his living expenses. These objections were made by three of the children of a deceased brother of Mrs. Parsons.
It is difficult for me to see what right the objectors have to be heard in this proceeding, but, inasmuch as a decision upon that point may embarrass the parties hereto, I will consider the objections which they have raised upon their merits, and will not pass directly upon the question of whether they are entitled, as next of kin of Mrs. Parsons, to object or not.
Under the will, it seems to me that Mr. Parsons was to be the sole judge of what amount of the principal of such estate he might need for his comfort and support, and that the bequest cannot be restricted by compelling his executors to show what his individual income was or what amount was actually sufficient and necessary for his support.
The cases quoted (Matter of Hunt, and Higgins v. Lewis) both arise under very different principles. In those cases,' the bequests for the use of the income and a portion of the principal were not alone for the benefit of the executrix therein named, but also for the support of a child of the decedent.
The facts of the two cases being so radically different, the reasoning adopted in those cases has no application to the case at bar.
The objections are, therefore, overruled, and a decree should he entered proving the account as filed.
Let appropriate decree be settled, upon notice.
Decreed accordingly.