9 N.Y.S. 476 | N.Y. Sur. Ct. | 1888
The only objection insisted upon by the contestants is that the payments for taxes and repairs should not be allowed out of the principal estate. The objection, therefore, is not to the allowance of the payments, on the ground that they were not made, but to charging the same against the residuary estate. On the part of the contestants, it is claimed that the widow’s interest was simply that of a life-tenant, and that her estate must be charged with and pay taxes and ordinary repairs. On the part of the executor, it is contended that she not only had such life-estate, but also a further interest, which entitled her to expend the principal estate. The testimony shows that the income estate was exhausted by the widow, and thereupon the
I do not think, however, that the testator intended to limit his widow’s estate to simply a life-estate, which would entitle her to receive and have the-benefit of the income only, and taking the same with the usual burdens of a. life-tenant,—of payment of taxes and general repairs. There is no limit in the will to income only. The testator gives the widow all of such property, for her own use and benefit; and while the words during “her natural life,” which follow, standing alone, may have the effect of not only fixing the term of the estate, but to the extent of the same, which I do not consider it necessary to determine, yet other provisions of the will, taken in connection with all the other circumstances, lead me to the conclusión that the intention of the testator was to make a provision for his widow beyond the simple income. As we have seen, the executors are directed, after the death of the widow, “to sell, collect, and settle up the personal property that may be left by her, and divide the same,” etc. The testator, beyond doubt, here disposed of liisproperty that his widow might leave. No other reasonable interpretation can be given to this language than that he contemplated that his widow should use from the principal estate, if necessary. The learned counsel for the contestant suggests that by the words “left by her” the testator had in mind a surplus of the income estate. This would be a strained and unreasonable construction. To adopt it would be to impute to the testator an attempt to dispose of the fruits of his wife’s estate which he had given her absolutely, and would be equivalent to introducing into the will words of income or profit which nowhere are used therein, to take the place of explicit and clear language, (“personal property,”) which are inseparably connected with the words