Macknet's Executors v. Macknet

26 N.J. Eq. 258

• Court: New Jersey Court of Chancery
• Decided: May 15, 1875
• Status: Published

Opinion

The Chancellor.

The petitioner is the infant child (now about seven years of age) of the late Charles S. Macknet, and is his only child by the respondent, Mary H. Macknet, who is his widow'. The petition is designed to obtain a declaration of the rights of the widow', under a provision in the twenty-fourth section of the will of Mr. Macknet. That provision is as follow's: “ My will is, and I do direct that, during the minority of my daughter Hattie, the income of the estate which I have hereinbefore bequeathed to her and to her use, shall be paid to her mother, (she remaining my widow, unmarried,) for the support, maintenance, and education of said daughter; and, in case of the death of her said mother, or her marriage, then so much of said income as may be necessary for the liberal support and education of said daughter Hattie, shall be paid by said executors, whom, in case of the death or marriage of my said wife Mary, I appoint to be the guardians of said Hattie.” It is alleged in the petition, that the income of Hattie’s share of the estate is far in excess of what is required for her proper support, maintenance, and education. The question presented is, whether the widow is entitled to receive the income of Hattie’s share; and, if so, whether she can be called to account for the excess over what can bo shown to be the amount required for the proper support, maintenance, and education of Hattie, according to her condition in life.

The first branch of this question was considered and disposed of in the opinion heretofore delivered in this cause, (Macknet’s Executors v. Macknet, 9 C. E. Green 294, 295, 296,) in which it was held, that the widow was entitled to receive, so long during the minority of Hattie as she should remain the test ator’s widow, the income of the share of the estate which is, by the will, expressly and directly given to her daughter. The bequest is a gift of the income to the widow, charged with the proper support, maintenance, and education of her daughter. Nor will she, so long as she faithfully disohargesthe obligation thereby devolved upon her, be required to-account. ' Perry on Trusts, §§ 117, 118, and cases there cited. The intention of the'testator to give the income of the share which he had expressly and directly given to Hattie, to her mother, so long during the minority of the former as the latter should live, and continue to be his widow, is clearly expressed ; and that he intended that all of that income should be paid to his widow without reserve, and without regard to the amount which might be required for the purposes- indicated, and without account, is further evident from the provision made for the same objects, in the event of the death or re-marriage of his widow during - the minority of the child, in which case the guardianship is to devolve on the executors. In that case, the expenditure is to be limited to so much only of the income as may be necessary for the liberal support and education of the child.

The executors will be directed to pay over to the widow,, so long during the minority of Hattie as she shall remain the testator’s widow, the entire income of the share expressly and directly given to Hattie by the will.