Denis's Estate

Opinion by Mr. Justice Green, We agree entirely with the learned court below in their disposition of this case and can scarcely add anything to what has been so well said in the clear and convincing opinion filed. It is perfectly manifest that the widow was the first and principal object of the testator’s bounty and that he fully intended that she should, at all times and in all circumstances, have the full amount given to her by the will. The entire estate, real as well as personal, was subject to the charge in her favor, no restraint being placed upon the executors as to the source from which the widow’s annuity should be derived. A sum was reserved by the auditor upon the executor’s account which was supposed to be, and in fact was, sufficient, at that time, to produce the necessary income to enable the executors to carry out the testator’s directions in favor of the widow. In the fixing of that principal sum she had no part and was not bound by it in any way. She was never called upon to agree, and never did agree, to that sum as an amount to which she should be limited as the source from which her income and other provisions should be derived. It happened that owing to a state of business affairs which could not be foreseen, and for which no one was to blame, the amount of the principal sum reserved came to be insufficient for its purpose. But the widow could not therefore be deprived of her provisions under the will. She had surrendered her rights under the intestate law in accepting these provisions, and was therefore a purchaser for value of the testamentary provisions in her favor. There was no proceeding under the act of 1853 to discharge the real estate from the [499] charges in her favor, and the real estate was accessible under the will to supply the deficiency resulting from the inadequacy of the sum set apart by the auditor. Nor can we at all agree to the suggestion that the corpus of the fund shall be used to pay the annuity and other charges due the widow. That would not be in conformity with the will and would rapidly deplete the principal of the fund. Without expanding upon the reasoning of the learned court below we think it sufficient to say that it is entirely satisfactory to us, and upon the considerations there expressed, and the views above indicated, we affirm the decree. The decree of the court below is affirmed and the appeal dismissed at the cost of the appellants.