#### Mary A. Huggins, Plaintiff, v. Juliet G. Lewis, as Executrix and Testamentary Trustee, etc., of Hiram Lewis, Deceased, Defendant.

(Supreme Court, Madison Special Term,

April, 1900.)

Will — Precatory clause permitting life tenant to assist a remainder-man, in misfortune, not enforced.

A provision in the will of a testator permitting his widow, the life tenant, to use the principal only in case her needs required it or she chose to assist such of the children, the remaindermen, as had been unfortunate, cannot be invoked by a child to compel the life tenant to sell real estate of the corpus to satisfy alleged necessities of the child where its interest in the remainder is of substantial value, where the provisions of a codicil indicate that it was not to have anything after marriage, which had taken place, beyond the interest In the remainder, and where the life tenant would sell at a disadvantage to the estate because, owing' to the death of another child and remainderman, leaving issue, the life tenant could not give a valid; title to the entire fee.

Action for the construction of a will.

John A. Johnson, for plaintiff.

M. Eugene Barlow (Henry B. Coman, of counsel), for defendant.

Forbes, J.

This is an action brought by Mary A. Huggins against the executrix and trustee of the testator, to compel said executrix to sell certain portions of the real estate, held by her as trustee; and pay over to the plaintiff a sum sufficient to maintain and support her while she is in an alleged indigent condition, as provided by the fourth clause of the last will and testament of said testator.

The plaintiff is the daughter of Hiram Lewis. The defendant, Juliet G. Lewis, the executrix, etc., is the widow of Hiram Lewis.

This action involves the construction of the last will and testament of said Hiram Lewis, which was made on the 27th day of *293February, 1883, and the codicil to said will, which was made on the 'Tth day of May, 1888.

After providing for the payment of his debts and burial, and a bequest to his son Charles of a breastpin, owned by the deceased, the third clause of said will reads as follows:

> *“*All the rest, residue and remainder of my estate, real and personal, of every name and nature, shall be held in trust by my wife Juliet G. Lewis during her natural life, in manner and for the purposes hereinafter mentioned, that is to say: the same shall be managed and controlled by my said wife as trustee, for that purpose duly appointed. The income, rents, profits and interest arising from my said estate shall belong to and be the property of my said wife, for her use, support and disposition during her lifetime, the principal being by her held in trust' as aforesaid with power in her to make such changes of investment thereof as her best judgment shall determine to be for the interest of my estate and to that end she is empowered to make sale of any or all of my real estate, execute any contract, agreement or conveyance thereof, as may be necessary and take and receive the avails of such sales in her possession and control as trustee as aforesaid, the interest or income arising therefrom to be used and enjoyed by her as aforesaid during her natural life. The power above vested to extend to the changing of investment of personal securities as well as real estate.”

It will be seen by this clause in the will that the defendant is given possession, control, management, and all of the income from said estate, for and during her natural life.

This bequest was the least of the moral and legal obligations which the testator owed to his widow. Buchanan v. Tilden, 158 N. Y. 109.

The fifth clause of said will, in part, reads as follows:

> *“ Fifth:*Upon the decease of my said wife Juliet G. Lewis, all the estate real and personal, and the remainder thereof so held by her as trustee as aforesaid, shall belong to my children or the survivor of them as follows:”

The estate is then divided between the three children of the deceased, who were living at the time of the making of said last will and testament.

The fourth clause in said will reads as follows:

> *“ Fourth:*Should my children, or either of them, that is Ida E. Skinner, Mary E. Lewis or Charles H. Lewis, by reason of sick*294ness or unforeseen calamity become necessitated as to require assistance in their proper and necessary care and support, and the income and profits arising from the real estate and investments in the hands of my said wife as above mentioned, shall prove insufficient for her proper support and to afford the necessary contribution for the aid of my said children, or either of them, then my said wife as such trustee is empowered to use sufficient of my estate in meeting the requirements of the emergency to the extent her best judgment may dictate.”

This clause, while unfortunately worded, thus making the intention somewhat obscure, I think must be interpreted as meaning that the executrix might use a portion of the principal part of the estate in accordance with the exercise of her best judgment, either in supporting herself or in relieving any of the children of the deceased from actual want; and I think cannot be construed as a peremptory obligation imposed on her to change the form of the trust estate against her judgment and wishes. Riker v. Cromwell, 7 N. Y. St. Repr. 316, and authorities cited at page 320.

The whole tenor of the will seems to provide for the keeping of the estate intact, unless the income should be insufficient for the support of the widow, or unless she should see fit to turn over some portion of the estate to any of the children who actually needed care and support.

It seems to me that this conclusion is a reasonable one, when we take into consideration, in connection with the will, the provisions of the codicil, made five years subsequent to the making of the will. At this time the plaintiff in this action was unmarried, and by the first clause of said codicil the following provision was made for her:

> *“First:*I will and direct that my wife the executrix and trustee named in my said last will, shall pay annually after my decease to my daughter, Mary A. Lewis, the sum of two> hundred dollars ($200), during the time my said daughter Mary A. shall remain single and unmarried, and during the lifetime of my said wife; should said Mary A. marry during the lifetime of my said wife, then the payment of said annuity of two hundred dollars shall cease. The said amount of $200 is to be paid from the issues, interests and profits of my estate real and personal.”

At the time this codicil was made, Ida Emeline Skinner, the other daughter of the deceased, had died, and Charles H. Lewis and the plaintiff were the only children surviving. Charles H. *295Lewis has since died, leaving the plaintiff in this action the only surviving child; and a daughter of Mrs. Skinner, Lela May Skinner, the only heir of the deceased daughter.

Mary A. Lewis was married to Harry 1ST. Huggins at Council, Bluffs, Iowa, September 13, 1888. Charles H. Lewis died about August, 1890, without issue. The testator died on the 5th day of February, 1892.

Under the fifth clause of the codicil, the residuary estate, in remainder, passed to Mary A. Lewis, the plaintiff, and to Charles H. Lewis, share and share alike; subject, nevertheless, to the life use •of the same to the defendant, as provided in the will.

It seems to me that the codicil makes it very plain indeed that the intention of the testator was to provide a specific annuity for the plaintiff up to the time of her marriage, when that annuity was to cease.

It is also plain, by a provision in the codicil, that the principal sum was not to be devoted to the payment of such annuity, but that it should come wholly from the rents and profits of the real estate and investments.

After the death of the testator, the filing of the inventory disclosed that there was personal property to the extent of $4,353.12. It was conceded, on the trial, that this entire sum has been absorbed in the administration of the estate, the payment of debts and expenses.

The real estate consists of a small house and lot; a small hotel and a brick dwelling-house, near to the same, and upon the same lot, in the village of Canastota; about twenty acres of land in the town of Madison, in this county; this, with the hotel furniture, seems to be all there is left of the estate.

There is no evidence in the case to show that there is a surplus income, arising from said estate, above sufficient to support the widow, in the manner provided for by the will. Holden v. Strong, 116 N. Y. 471.

So that the court cannot find that the estate, in its present condition, affords sufficient income to warrant an appropriation of any portion of such income to the support of the plaintiff.

It will be seen that, after carving out from said estate the life interest of the wife, the absolute title to three-quarters of said real estate is vested in the plaintiff in fee.

On the death of Charles H. Lewis and the death of testator, un*296der the codicil portion of said will, one-half of the interest of Charles in said estate passed to the plaintiff,, and the other half to the daughter of Mrs. Skinner. She is not made a party to this action, nor indeed is the defendant made a party, except in her representative capacity.

This being the situation, can a decree be made and enforced to-sell any portion of the real estate in the hands of the executrix for the support and maintenance of the plaintiff? Bo decree could be made to bind the heir of the deceased daughter; as no decree, under the form of the complaint, in this action, would bind the individual interest and life estate of the defendant.

Again, the evidence shows that the plaintiff is not in the condition provided for by said will, nor does she come within the provision of the fourth clause of said will, entitling her to maintenance and support as an indigent person. She stands upon the record the absolute owner in fee of three-fourths of this real estate, which she has the right to sell, or mortgage, or dispose of in any manner she sees fit, subject to the life estate of the defendant.

In all of the cases which I have examined, where a precatory clause has been enforced, it was where the bulk of the property was-given absolutely to the-devisee or legatee, with the wish or obligation expressed by the testator to devote some portion of it to a person named. Bo where do I find a ease where that obligation has been enforced, when only the income was given to the life-tenant, and the bulk of the estate went to the remainderman as the person to receive the precatory benefit, which is the case in the present action. Riker v. Cromwell, 7 N. Y. St. Repr. 316; Collister v. Fassitt, 7 App. Div. 20; S. C. affd., 23 id. 466; Colton v. Colton, 127 U. S. 300; Phillips v. Phillips, 112 N. Y. 197; Holden v. Strong, 116 id. 471.

It seems to me that the testator originally intended that the entire income from his .estate should be devoted to his wife, absolutely, under the will; and that only the surplus, if any, of the income was to be appropriated, if at all, under the fourth clause of the will, if we examine it independently of the provision made for the plaintiff in the codicil. Hopkins v. Kent, 145 N. Y. 363; Clay v. Wood, 153 id. 134.

I think the codicil was intended to modify the fourth provision of the will by giving an annuity of $200 to the plaintiff, and that by her marriage she voluntarily cut herself off from that means of *297support. This is shown clearly by the sixth clause of the codicil, which reads as follows:

> *“ Sixth:*I hereby alter, amend, change and annul such parts or portions of my last will and testament as by this codicil expressed.” Weeks v. Frost, 7 N. Y. St. Repr. 487.

The only power expressly given to sell and convey real estate is given by the third clause in said will. I think no other power is given, in the will, to sell and convey real estate.

There is no evidence to show that the estate would be benefited by a sale of the property, and the complications are such that it might be greatly injured. Matter of Roe, 119 N. Y. 509.

With the option to the plaintiff to sell or incumber the body of the estate to the fullest extent of her interest therein, it seems to me that the court has no power or right to compel or permit the defendant, as executrix, to sell and convey any portion of the real estate. Matter of Roe, 119 N. Y. 509.

Nor could the defendant give any valid title thereto' against the surviving heir of the deceased daughter. On the request, and with the permission, of the plaintiff, the most defendant could do would be to sell the interest of the plaintiff in said real estate; and this she ought not to be compelled to do, since the plaintiff can best protect her own interests and relieve her necessities in such manner as she may be advised.

The complaint must, therefore,- be dismissed, and a decision and decree may be drawn accordingly.

Oomplaint dismissed.