In re the Estate of Ward

186 A.D. 261, 174 N.Y.S. 182, 1919 N.Y. App. Div. LEXIS 5812

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1919
• Status: Published

Opinion

Per Curiam:

By subdivision 7 of the will the trustee is directed to invest the sum of $6,000 in trust and to pay over the income thereof to the petitioner for her support and maintenance during lifetime. It is further provided that in the event that the income prove insufficient for such proper care then the trustee may use so much of the trust principal as may be necessary for such purpose, also that upon her death the trustee is directed to pay her funeral expenses and erect a suitable headstone to mark her grave, and that any balance that may remain shall fall into the residuary estate for the benefit of the remaindermen.

We are impressed with the soundness of the contention that the petitioner is entitled to be given such a sum yearly as is necessary for her support and maintenance, in circumstances fitting and reasonable in her station in life, and that the only discretion vested in the trustee is to preserve the trust fund from extravagance and waste by the petitioner.

The remaindermen are not made parties to these proceedings, and, therefore, we are not called upon at this time to construe the will and direct a judgment in the case. The proceedings are remitted to the Surrogate’s Court for such action as to the petitioner as may seem proper. We are of the opinion that the surrogate has ample power to construe the will and effectuate, by a proper decree, the intention of the testator.-

All concurred.

Order reversed, with costs to appellant payable out of the estate, and matter remitted to the Surrogate’s Court for further proceedings.