In re the Probate of the Last Will & Testament of Lehre

8 Mills Surr. 201, 72 Misc. 565, 131 N.Y.S. 992

• Court: New York Surrogate's Court
• Decided: June 15, 1911
• Status: Published

Opinion

Ketcham, S.

The trust for the husband contemplates the consumption of the principal of the residue to such extent as the proper care of the beneficiary may require and the discretion of the trustees shall prescribe.

The terms of the gift in trust are not that the income shall he paid out, or used, or expended, but that the residue is to be “ used, paid out and expended to properly care for or have cared for, my husband aforesaid, and to maintain him in said Hospital, in a good and proper manner.”

Throughout the will are many provisions that certain amounts therein given shall be “ used,” and in one instance there is a gift of $500 to a legatee named “ to be used, paid out and expended by him for the care of my grave.” In none of these cases is it possible that the words contemplating a use or payment or expenditure would be satisfied except' by the consumption of the principal. The same words must mean the same thing in their several repetitions. The testatrix has set up her own vocabulary, by which interpretation is controlled. As to what shall be done with the fund in the event of the death of the beneficiary, there is no need for present interpretation.

The decree of probate will embody the foregoing construction.

Decreed accordingly.