In re the Judicial Settlement of the Account of Langdon

Cohalan, S. — Upon this executory accounting a construction of the will of the testator is necessary. The testator was a [22] widower and had but one child, a daughter, Therese T. Vilanova, who is an invalid and incompetent and'is at present cared for at St. Vincent’s Retreat at Harrison, U. Y. By the third paragraph of his will the testator directed his executor, out of any funds on deposit in banks or trust companies, to purchase an annuity of $425 for the lifetime of said daughter and payable half yearly to himself as executor, “ which shall be in addition to the annuities I now hold for her lifetime' or hers and my own of $800 a year.” After the execution of the will the testator during his lifetime purchased an annuity of $500, and the question is asked, should the executor now purchase an annuity of $425 as directed by the third paragraph 'of th.e will or is the purchase by the testator during his lifetime of the additional $500 annuity an ademption of this legacy ? I am of the opinion that it is not. The executor, by the fourth paragraph of the will, was directed from the aggregate annuities to provide for the care and maintenance of his daughter by paying her board and expenses of forty dollars a month while she remained at St. Vincent’s Retreat and ten dollars a month more.for carriage drives, .clothing and other incidentals, or- “ if she shall cease to be a patient at said asylum, by otherwise, supplying her needs and giving her suitable care.” He was also directed from said annuities to pay one Julia Shandley twenty dollars a month for her services to the daughter of the testator in writing to her at least once a month and in procuring'her necessary wearing apparel, carriage drives and generally looking after his daughter and seeing that her wants were supplied; such payments to be made only so long as Jnlia Shandley should render such services. Provision is also made by the fifth paragraph that in case his daughter shall so far recover from her ailment that she shall be able to leave the asylum and it shall be no longer necessary that she shall be under similar restraint, the executor shall be authorized to consent to have her well taken care of by Julia Shandley if [23] she be willing, or by some other proper person, and that “ the cost of their living together be paid out of said annuities to such an amount as shall be necessary, with a suitable contribution by Julia Shandley to such expenses,” and the executor “ may also pay from said annuities or from any of my estate available such additional cost of maintenance of my daughter out of the asylum as they shall deem enough.” The remainder of the estate is given one-half to St. Vincent’s Retreat and the other half to Julia Shandley, if she shall be living at the death of the testator’s daughter and shall have complied with his wishes concerning his daughter, and, if not, then all to St. Vincent’s Retreat. From a reading of the will it can readily be seen that the primary object which the testator had in view was to secure for his only and incompetent daughter for the rest of her life every possible care and comfort suited to her unfortunate circumstances and condition. The whole will is designed to accomplish this end. Her welfare was the all important wish of the testator. He did not mean by the fourth paragraph of the will to limit his executor to the expenditure of $840 a year, but intended also to provide for emergencies and changes of circumstances, so that hi-s daughter should not be deprived of the necessities of life or become an object of charity because there was but $840 a year available, which, by reason of changes of condition, might at sometime be inadequate for her maintenance and support. Apparently, while she remains at St. Vincent’s Retreat, $50 a month will pay for her care and keeping, but it is possible that she may not remain there always or that St. Vincent’s Retreat may not always be in existence, and she would have to be cared for elsewhere at perhaps a much higher price. The evident intent of the testator is that his estate, to whatever extent necessary, may be used for the proper maintenance and care of his daughter, and this is strongly emphasized by the fifth paragraph of the will, which provides for [24] the care of the daughter in the event of her becoming cured and being able to leave the asylum where she is now confined. In that event the executor is to pay “ from any of my estate available ” the additional cost, of maintenance of his daughter out of the asylum. The testator knew that, if his daughter was cured and left the asylum, a much greater amount of money might be necessary to defray her living expenses. I, therefore, hold' that the terms, of the third paragraph of the will should be complied with and that the executor purchase an additional annuity of $425. The balance of the principal of the estate the executor should hold in trust for the daughter during her life and from the income thereof make the annuity payment and satisfy all expenses of the daughter’s maintenance, and should hold any surplus income thereof to meet and defray any unforeseen additional or extraordinary expense for the maintenance and support of the testator’s daughter which does not now exist. bTo express direction for an accumulation is contained in.the will, and the necessary accumulation yearly resulting from the use of but a portion of the income is not a void accumulation under the statutes. (Hill v. Guaranty Trust Co., 163 App. Div. 374 ; Estate of Burns, 164 id. 363.) Decreed accordingly.