6 N.Y.S. 777 | N.Y. Sup. Ct. | 1889
I incline to the opinion that the testator intended that the payment to his widow of the $100 annually during her life should be made, as directed, out of his personal estate; the principal to be applied to that purpose if the income should fail. The testator did not say it should be paid out of income. He pointed out no principal from which to raise it. He suggested no contingency. He declared “the provisions of this will” to be in lieu of dower and other statutory claims of the widow. All the provisions of the will in favor of his widow are made upon consideration of her electing to ac
Respecting the fund from which the annuity must be paid, it is plain, however, that it must be confined to the $705.80 realized from the sale of the farm implements. The testator devises and bequeaths, upon the death of Mrs. Lansing, the use and income of the house and lot and farm to her mother, Mrs. Tuttle, during her life. This is a clear intimation that the corpus of the house and lot must not be impaired to pay the annuity, and Mrs. Lansing must be understood to accept the provisions of the will with this restriction. Judgment is directed in accordance with these views, with costs to tile parties out of the fund of personal estate. All concur.