
    Matter of the Estate of James L. Lowery, Deceased.
    (Surrogate’s Court, Oneida County,
    December, 1896.)
    Executors and administrators — Life tenant required to give security as a condition of having possession of fund.
    A will gave to the widow during her natural life “ the possession, management and the control, and the rents, profits, use and income ” .of all the residue of the estate, with remainder to the executors in trust. The widow is one of the executors. Held, that notwithstanding the apparent intent of the testator to vest the possession and control in the wife, yet for the security of the remaindermen the court would require the life tenant to give a bond as a condition of the delivery of the principal of the fund to her.
    Proceeding for judicial settlement of the accounts of executors in above estate. :
    
      0. Lansing Jones, for executors.
    R. 8. Johnson, special guardian.
   Caldee, S.

The testator, James L. Lowery, in and by his will appointed his.wife, Emily Gale Lowery, Clifford E. Marklove and William L. Downing, executors- At the death of his' wife said Marklove and Downing receive the corpus of the estate, as trustees, to dispose of the same as directed in said will.

The question here to be determined is in reference to the dis- ' position of the corpus of the estate during the life of Mrs. Lowery.

The,portion of the third clause of said will which is to be construed is as follows: “I do hereby give, bequeath-and devise ' unto my wife, Mrs. Emily Gale Lowery, for and during her natural life, the possession, management and the control, and the rents, profits, use and income of all the rest, residue and remainder of all my personal and real property and proceeds of real property, if sold, of every name and nature and wheresoever situated . which I may own at the date of my death.”

The primary object to be arrived at in the construction of all wills is the intent of the testator. There can be no doubt but that he intended to vest the possession, management and control of the principal unreservedly in his wife. She is a life legatee. The right of remaindermen, however, should always' be considered when a fund is to be transferred to such legatee. Such a disposition cannot be demanded as a matter of right, but should b.e asked as a favor which a court of equity may grant, by the imposing of such terms as may be just and equitable. Matter of Shipman, 53 Hun, 511; Matter of Gillespie, 18 Abb. N. C. 41; Tyson v. Blake, 22 N. Y. 558; Livingston v. Murray, 68 id. 485.

In the present case there are seven children who will be entitled to the ■fund at a future time, and I believe it my duty for their protection and in accordance with our adjudicated cases to exact a bond before the principal is delivered to the life legatee.

In case the life legatee does not furnish the requisite bond,, it is the duty of the executors to retain the corpus of the estate and pay the income to the proper person as provided in said will. Matter of Gillespie, supra; Clark v. Clark, 8 Paige, 152.

The fact that the life legatee in the present case is one of the executors does not require from said, executor any security or bond. In one case as life legatee she would -take the fund by favor. As executor she asks no right of the court, the confidence being placed in her by the testator. As executors they are to ad- ■ minister the estate in such a manner as the law directs. They cannot be called upon to furnish bonds except for reasons specified in section 2638 of the Code of Civil Procedure.

A decree may, therefore, he entered directing the delivery of the corpus of said estate to Emily Gale Lowery, to be administered by her as provided in said will, upon her giving a bond in an amount to be approved by the court within fifteen days from the date of the entry of the decree, or in case of her noncompliance as to said bond, said corpus is to remain in the hands of the executors of the estate, and they are to administer the same according to the terms of said will.

Decreed accordingly.  