Barnes v. Kelly

HalIi, J. The complaint asks an adjudication upon the following questions relative to the construction of the will of Carl Gerker: “ First. Did Wilhelmina Gerker take under said will any beneficial interest to herself personally, as distinguished from the devise to her in trust for said Louisa Gerker? And if so, what interest did she take? Second. What interest did Louisa Gerker take under said will, and what are the power and duty of the trustee as to apply [222] ing the property for her support ? Third. Is any portion of said estate, or may any portion thereof he, intestate estate?” The plaintiff is the trustee appointed by the Court of Probate to execute the trust created by the will. The only defendants are the widow of the testator, and Kelly and Romanowsky and wife, grantees of the testator’s niece Wilhelmina. As those persons who, under the statute of distribution would take intestate estate of Carl Gerker upon the death of his widow, have not been made parties to this action, they would not be concluded by a judgment of this court adverse to their interests, upon the first and third questions propounded in the complaint. But inasmuch as the conclusion we have reached upon the second inquiry seems to render an answer to the others of slight consequence, since the entire value of the interest of the testator in the farm will probably prove inadequate to meet the expense of the support of the widow, we have concluded, rather than continue the ■ case for the giving of further notice, to answer the second question without deciding the first and third. The defendants Kelly and Romanowsky claim by their pleadings, that the only beneficial interest given to the widow in this property by the will was a right to a home upon the farm during her life, together with a comfortable support there; and that so long as she chooses to dwell elsewhere, she has no interest in the farm and is not entitled to receive a home or support from either the profits or the avails of a sale of the farm. In behalf of Louisa Gerker it is claimed that by the language of the will the whole estate is to be devoted to providing her a comfortable support during her life, without any restriction as to the place where she shall dwell. The construction contended for by counsel for the widow is clearly the true one. The language of the testator, in describing the purpose of the trust in that devise to his niece, is “ that she furnish my wife Louisa Gerker a home during her natural life together with a comfortable support such as she has had with me.” These last words describe [223] the quality of the support to be furnished to the widow rather than the locality of her home. The entire estate of the testator, beyond what was required for the payment of debts, consisted of this farm of the value of but a few hundred dollars, and already mortgaged for $245. His widow was apparently possessed of little, if any, property, as she is found to be wholly without means of support. It was manifestly the first wish of the testator to furnish, in so far as he was able, a comfortable support for his wife in case she should survive him. He must have known that she could not be supported from any income that might be derived from this property, whether she lived upon the farm or elsewhere, and that even the sum which might be realized from a sale of the equity of redemption would be sufficient for her support but for a short time. We think it was the intention of the testator that the trustee should devote the whole estate, principal and interest, if necessary, to provide a comfortable support for the widow during her life. In answer to the second question we advise the Superior Court that the plaintiff trustee has the power to redeem the mortgage of $245 to the Norwich Savings Society, or to sell the farm subject to said mortgage, and to devote, so far as may be necessary, all the estate of Carl Gerker remaining after the payment of debts, to furnishing a comfortable support to said Louisa Gerker during her life. For the reasons already given we do not answer the first and third questions. In this opinion the other judges concurred.