Gross v. Strominger

Opinion by Mr. Justice McCollum, The fund in dispute is identified by the case stated as proceeds of the sale by the executrix of the real estate of the testator. It is what remains of his estate after deducting therefrom the cost of the comfortable maintenance he intended his widow and executrix should have from it. The sale was made by her [70] under the power with which she was clothed by his will. He obviously intrusted her with the management of the estate for the accomplishment of his declared purposes, and these were that she should have her support from it and preserve the remainder for distribution in accordance with his directions. In plain terms he gave her the residue of his real and personal estate “ during her natural life,” authorized her to sell the same if she desired to do so, to “put the money derived therefrom upon interest,” and “to use all the said interest if required for her own subsistence.” To meet a possible contingency he provided that if the interest was not sufficient “ for her own ■personal wants and comfort ” she might “ take of the principal sufficient to make her comfortable.” Immediately following the provisions for her support and in the second sentence of the will relating to it he directed that, whatever was left at her decease should be divided between his children and grandson named therein. . The testator’s wife was manifestly the primary object of his bounty. Whatever was necessary for her support he intended she should have. If the income of the estate was sufficient to afford her a suitable maintenance it was his intention that the principal of it should go, at her decease, to the children and grandson, unimpaired. A construction of the privilege which makes it operate as an absolute gift to the wife of the residue of the estate would defeat the plain purpose of the testator and take from the children and grandson named in the will that which he intended they should have at her decease. There is no warrant in the language of the testator for such a construction. The Avords “ she to have full control of said money the same as I would have if I was living ” are properly applicable, and should be limited to that which the testator had already devoted to the maintenance of his Avife, and cannot be justly considered as enlarging the preceding gift. The mere fact that the securities which represent the balance of the estate were taken in her name has no particular significance. It was not within her power to defeat his intention respecting the remainder of the estate by any such act. It being conceded that the securities in question constitute such remainder, the right of the children and grandson to it is as clear as it would be if [71] the securities had been taken in the name of the life tenant as executrix. A careful consideration of the will has satisfied us that there is nothing in it which requires that the manifest intention of the testator shall be disregarded in construing it, or which furnishes an adequate warrant for the judgment entered upon the case stated by the learned court below. Judgment reversed and judgment now entered upon the case stated in favor of the defendant, with costs.