#### Matter of the estate of Aaron P. Blanck, deceased.

*(Surrogate’s Court of New York County,*

*Filed November*14, 1886).

Will — Coxstbuctiox — Sitppop.t of widow.

Where the testator gave to his wife by his will, “ the rents, interest and entire income ” of all his estate, real and personal, after payment of his just debts and funeral expenses, to have use and enjoy the same so long as she remain his widow, and added, “ It is my desire that during the life of my wife, she and my son (referring to his son A. who died afterward), “ shall have their home together, and if the entire income of my estate shall prove insufficient to the comfortable support and maintenance of my said wife (or of both, if my wife and son continue to reside together), then I authorize and direct my said executors from time to time to pay and advance to my said wife out of the principal of my estate such sum or sums of money as may be requisite or proper to provide for her or them such comfortable support and maintenance. The above provision for my wife shall be in lieu and in bar of dower and all other claims of hers upon my estate.” *Held,*that the testator intended that his widow should continue after his death to be provided with a home as comfortable and as much to her liking and as suitable to her wants as the one which she enjoyed in his life-time. That the entire estate must be exhausted in her behalf if necessary, that she will not be compelled to regulate her mode of life according to the standard which the administratrix may apply.

*Gwillim Meyers,*for petitioner; *Manley Raymond,*for resp’t *i Jonathan Marshall,*for infant.

Rollins, S.

It was clearly the intention of this testator to pro*385vide at all events and under all eireumstances for the comfortable support of his wife so long as she should remain his widow.

He gives her by the first clause of his will “ the rents interest and entire income ” of all his estate real and personal after payment of his just debts and funeral expenses, to have, use and enjoy the same so long as she shall remain his widow. And he adds, — “ It is my desire that during the life of my wife she and my son ” (referring to his son Aaron, who has since deceased) “ shall have their home together, and if the entire income of my estate shall prove insufficient to the comfortable support and maintenance of my said wife, (or of both, if my wife and son ■continue to reside together), *then I authorize and direct*my said executors from time to time to pay and advance to my said wife, out of the principal of my estate, such sum or sums of money as may be requisite or proper to provide for her or them such comfortable support and maintenance. The above provisions for my wife shall be in lieu and in bar of dower and all other claims of hers upon my estate.”

It is a familiar rule of law, that, as between life tenant and remainder-man under a will, the -burden of taxes and repairs must ordinarily be borne by the former. Counsel for the respondent in this proceeding insists that the petitioner is entitled under her husband’s will, not to the gross income of his estate but to the surplus of such gross income above the customary charges. Whether this interpretation of the will is sound or unsound, is not material to the present inquiry, unless the gross income is discovered to be more than sufficient for the widow’s comfortable support and maintenance ; for if the net income is inadequate, the widow has an absolute right, under the will, to insist upon the depletion of the *corpus*of the estate to supply the deficiency. There is no room for doubt that the testator intended that his widow should continue after his death to be provided with a home as comfortable and as much to her liking and as suitable to her wants as the one which she enjoyed in his lifetime. He pledged her entire estate, income and principle, to the accomplishment of that object. A part of that estate at the time of his death consisted of leasehold property whose value» as he must bave known, would in the course of years be extinguished. It is fair to suppose that this knowledge of the possible diminution of income in the life of the widow was one of the chief reasons why he instructed his executors to resort in a certain contingency to the *corpus*of the estate for the widow’s benefit.

In providing for his son and for the children of his son in the event of their father’s death, he does not, as the respondent’s counsel claim, devises and bequeath the remainder after a. mere life estate; he devise, and bequeaths only such part of his possessions as may be left at the widow’s death after every penny *386needed for her comfortable support and maintenance has been devoted to tbat purpose. Tbe claims of tbe respondent’s children are clearly subordinate to those of tbe petitioner; the . ordinary rule of law which requires a 'trustee to exer thimself equally to protect the tenant for life and the remainder-men, and to see to it that at the death of the former the latter shall come into possession of afl the property from which the former had derived income, is not applicable to the case in hand. If the comfortable support and maintenance of this petitioner cannot be secured without devoting the entire estate to her uses, the entire estate must be exhausted in her behalf.

John W. Blanch, a nephew of the testator, formerly executor, filed his account as such in 1885. That account shows that from the death of her husband until June 1878, Mrs. Blanch received from the estate $6.448, or at the rate of nearly $1,300 per year. .From June, 1878, to June, 1885, she received $3,832,50 or at the rate of about *$475*per year.

She should not be stinted to this amount nor be compelled to regulate her mode of life according to the standard which the .administratrix seehs to apply. I strongly intimated in my memorandum of July 2nd that I might have refused to grant ■this respondent letters if I had felt at liberty to do so under the law. There seemed to me reason to apprehend that the petitioner would not receive at her hands the consideration to which she is ■entitled under the will. The evidence now before me shows that my apprehensions were not without substantial foundation. 'The course which the administratrix has pursued has made it necessary for the petitioner to procure the services of counsel for the protection and security of the rights which the respondent seems •disposed to deny her. A decree may be entered directing the •payment to the petitioner of $325. Such portion of that sum .should be paid out of income as the amount of income now on .hand will justify; the remainder should be paid out of the prih•cipal. The decree must fix these sums definitely, and if counsel •disagree in the premises their differences will be adjusted by dhe court. Counsel for the petitioner has suggested that she will be content for the future if she shall be permitted to continue in the occupancy of the premises now devoted to her use .and shall receive the sum of $50 per month. It is not necessary .and perhaps not proper to give any direction at present in this .regard. But it is hoped that some agreement may be arrived at which will be satisfactory to all parties in interest and prevent useless and expensive litigation.