132 N.Y.S. 1004 | N.Y. App. Div. | 1911
Minnie G. Oberndorf, the plaintiff, married William D. Oberndorf, the defendant, on October 3,1893. Some two years thereafter the latter’s father, Julius Oberndorf, made his will, whereby, among other things, he disposed of his residuary estate by ■ giving, ■ devising and bequeathing the same to his executors and trustees in trust for certain uses and purposes,
Plaintiff now brings this action for the construction of the will of Julius Oberndorf, deceased, and for an adjudication that the trustees thereof are trustees for her benefit as well as that of her husband, that the -income be apportioned and that she be paid the sum of $1,000 annually in quarterly installments. For this relief she has had judgment, the court having found as conclusions of law that Julius Oberndorf intended
The objection to this determination- is, that this is not an action brought for a separation. It is not founded upon the separation agreement. That was expressly stated at the close of the case and the agreement is not in evidence. There is no proof that the husband abandoned his wife, nor has she shown that her leaving his home was justified. There is no proof of the husband’s means, nor of what resources the wife has, nor that she is without property and unable to support herself. It is not even shown that the husband has failed to support her. Plaintiff’s contention rests solely on the terms of the will, and by it she claims a trust has been created for her benefit, enforcible against the trustees of the estate and her husband. This view can find no support in the provisions of the will. The appellant now concedes, what was disputed in the trial court, that the wife is to be regarded as a member of the husband’s family for the purposes of this will. But granting that, all that was expressed by testator was his. wish that the son, when he received his income, should use it for the benefit of his family as well as his own. This was no more than the duty he owed them, in any event. The trustees under the will were vested with no discretionary powers; they were not directed to apply the income in any way, nor to supervise its distribution; they were ordered to pay the entire share of the income over to the son, and their powers and duties ended there. The wife was not named as a beneficiary, except in the event of her husband’s death, when the trustees were instructed specifically what to do in the contingencies that might then arise. The cases cited" by respondent are those wherein the trustees had duties to perform in respect to the fund and were charged with, the responsibility of seeing that it was applied to certain designated purposes. That
Under the will of Julius Oberndorf she took nothing directly; the trustees were to set apart no sum for her support, and she is without recourse against the estate. - We are not now concerned with the question of what her husband’s duties towards her may be, whether under the will or apart from it.
The judgment appealed from must, therefore, he reversed, with costs, and judgment directed in favor of the defendants dismissing the complaint herein, with costs. .
Ingraham, P. J., McLaughlin, Clarice and Scott, JJ., concurred.
Judgment reversed, with costs, and judgment Ordered as directed in opinion, with costs. Order to be settled on notice.