Weston v. Jenkins

Soule, J. After certain legacies, the testator gave, by his will, the residue of his estate to trustees, in trust, among other things, to pay to his widow “ such part of the interest or income of the same as in her opinion she may need, or as she may from time to time signify to them a desire to receive, for her use or benefit during her natural life; it being my will that she shall always have at her command, so long as she shall live, as much of said interest or income as may seem to her desirable.” He then provided for an annuity of one thousand dollars each to his son and daughter, during the continuance of the trust, which was to terminate on the death of the widow. Under the provision in her behalf, the widow was entitled to demand and receive from the trustees the whole income of the “ residue,” after payment of the annuities to the son and daughter, and to make such disposition of it as she saw fit. It was to be paid to her for her own use and benefit, and not upon any trust, nor with any remainder, over. The provision for accumulation was to be operative only in case she did not call for the whole income. The phrase, “ not needed to supply the wants of my said wife,” in that provision, is not to be regarded as intended to restrict the gift of the income in the previous clause, but is to be interpreted as a comprehensive expression covering the right given to the widow to call for such part of the income as she might elect to appropriate. This is the only interpretation which is consistent at once with the terms of the clause in which her right to the income is created, and the terms of the later clause in which the testator recites that he has provided that she “ shall receive and have at her command at all times so much of the income of the trust fund as she may need to meet all her wants of whatever nature that may at any time during her life arise, and so much as may seem desirable to her for her personal benefit, and for all other purposes to which she may be disposed or have occasion to apply the same.” It appears by. the report that, until January 1870, the widow failed to call for the whole amount of the income, and that the surplus which had accumulated was then added to the principal sum, and the whole trust fund was then transferred by the execu* [567] tors to the trustees. The widow thereupon signified her intention to draw the entire net income in future, and thereafter she did draw and receipt for substantially the whole, from year to year. The payments to her by the trustees were in accordance with their duty, and were properly allowed in their accounts. The payments of the amount of the annuity to the daughter of the testator, made after her death, were not authorized as payments of the annuity, because the annuity died with the annuitant named in the will. Weston v. Weston, 125 Mass. 268. They were made out of the income of the trust fund which belonged to the widow, and at her request. They were made, therefore, to her, and the amount was properly chargeable by the trustees to the income, and was properly allowed in théir 'account. We find no error in the decree of the Probate Court, allowing the account of the trustees, and the entry must be Decree of Probate Oourt affirmed.