| NY | Jun 13, 1946
Lead Opinion
The first decretal paragraph of the decree of the Surrogate's Court of Albany County construing the will of William E. Woollard, deceased, which has been affirmed by the Appellate Division of the Supreme Court, Third Judicial Department, should be modified to read as follows: "ORDERED, ADJUDGED AND DECREED that the true construction and effect of *394 the Last Will and Testament of William E. Woollard, deceased, and particularly paragraphs `Second' and `3rd' thereof, relating to the payment of the income and principal of the residuary estate of said deceased, is construed as giving to Harriet Holland Woollard, widow of said deceased, the right to all of the income and to such part of the corpus and principal of the said trust estate created by said Last Will and Testament of said deceased as she shall deem necessary for her maintenance, comfort or well being, and said Harriet Holland Woollard shall have the right to demand the payment and transfer to her of such part of the principal and corpus of said estate at any time whenever the said Harriet Holland Woollard shall deem it necessary for her maintenance, comfort and well being and shall so determine and state in writing to the Trustees in making any such demand or demands therefor, and the said Trustees are hereby ordered and directed to comply therewith, and it is * * *". Such a statement is all that may be required from the widow, since the statement itself imports the exercise by her of good faith and honest judgment, and under the terms of the particular will no one may question or go behind such a determination and expression by her.
The order of the Appellate Division and the decree of the Surrogate's Court should be modified in accordance with this opinion, and as so modified, affirmed, without costs.
Dissenting Opinion
The direction contained in the Surrogate's decree in this proceeding which this court is about to modify serves to enlarge to an unlimited right the interest of the decedent's widow in the residuary estate of her deceased husband. The decree and the modification by this court transcend those limits fixed by the decedent, whose will prescribes that the trustees shall pay to his widow monthly during her lifetime all the income from his residuary estate "* * * together with as much of the principal or corpus of my estate as she may deem necessary for her maintenance comfort and well being". Instead of giving his residuary estate outright to his widow the decedent chose to impress it with a trust. The broad provisions of that trust indicate the decedent's intent to make available to his widow something more than a life use of his residuary estate *395
but something less than an absolute fee therein. He made provision for a remainder over — which cannot be limited upon an absolute estate in fee. (Matter of Ithaca Trust Co.,
Accordingly I dissent.
LOUGHRAN, Ch. J. CONWAY, DESMOND and THACHER, JJ., concur inPer Curiam opinion; LEWIS, J., dissents in opinion in which DYE, J., concurs.
Ordered accordingly.