
    The Mutual Life Insurance Company of New York, App’lt, v. Sarah E. Shipmam et al., Impleaded, etc., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1. Will—Construction or.
    One S., by his will, appointed his wife his executrix, and directed her to pay his debts and funeral expenses. She was then given during life, or until she remarried, the entire estate of every description for her own use, and upon the happening of either of those events the residue and remainder of the estate went to the children; but she was “ authorized and empowered to make such advances out of that residue ” to any or either of the children as she should in her discretion deem best for their maintenance and support. Then it was provided that the amount of these advancements were to be charged to “ and deducted from the share or shares, of any such child or children upon the final division of that rest, residue and remainder." Then followed an authority to the executrix to mortgage, lease, dispose of and convey the whole of the testator’s property according to her discretion, and as she should deem best for the purposes of carrying “into effect the provisions of the will.” The children were young, without any means of support. The testatrix remarried and afterward mortgaged part of the real estate. Held, that the scheme of the testator required the executrix to collect the rents, convert the land, receive its proceeds and apply them for the purposes of the will. That there was no reason why the disposition of the estate should not be made by the executrix after her remarriage as well as before. That she had power to make, the mortgage in question.
    
      3. Same—Power nr trust.
    
      Held, that there was in the executrix a general power in trust, and the children took an absolute fee in the land subject to the execution of the power.
    The plaintiff sought to forecloss a mortgage executed to it by one Elizabeth L. Campbell, individually and as executrix of Parson Gr. Shipman, deceased. She was formerly his widow, and the question upon which the appeal turns relates to her authority as executrix. His will directed:
    
      First That his debts and funeral expenses should be paid by his executrix. Then followed these words:
    
      Second. I give, devise and bequeath all the rest, residue and remainder of my estate and property, both real and personal, of every kind and description, whatsoever and wheresoever the same may be, unto my dear wife, Elizabeth L. Shipman, to have and to hold the same for her own use and benefit so long as she shall remain my widow, and upon the death or remarriage of my said wife, I give, devise and bequeath the said rest, residue and remainder of my said estate and property unto the children born to me by my said wife, to be divided between them in equal proportions, share and share alike, to have and to hold the same to them, their heirs and assigns forever, and I do hereby authorize and empower my said wife to make such advances out of the rest, residue and remainder of my said estate and property to any or either of the said children born to me by my said wife, as she shall in her discretion deem best for the maintenance and support of any such child or children; the amount of which advances shall be charged to and deducted from the share or shares of any such child or children upon the final division of said rest, residue and remainder.
    
      Third. I hereby nominate and appoint my said wife, Elizabeth L. Shipman, sole executrix of this my last will, and guardian of my minor children; and I do hereby authorize and empower my said executrix to mortgage, lease, sell, dispose of and convey the whole or any part of my estate and property, both real and personal, for such price or prices, and upon such terms and conditions as she shall in her discretion deem best; and to execute, acknowledge and deliver all necessary and proper deeds and instruments for that purpose; and to invest and reinvest the proceeds thereof; and to change investments of the same, in such manner as she shall deem best for the purposes of carrying into effect the provisions of this, my will.
    The trial court found that the children referred to in the will are the defendants in the action; that they were all minors at the time of its execution and that four of them are still minors; that ever since the death of the testator the executrix had provided for their education and support out of her income from the estate and otherwise, and that she and the children from the time of the death of the testator until after the execution of the mortgage resided upon the premises therein described. He further found that “there had been no accounting or settlement as between the said testamentary guardian and the children, nor has there been any division of said estate,” but that on September 14, 1872, the executrix rendered an account to the surrogate showing payment by her of the funeral expenses and debts of the deceased, and obtained from the surrogate a final settlement thereof. She subsequently, June 26, 1876, married Joseph B. Campbell, who is also made defendant in this action. On the 15th of June, 1878, she borrowed from the plaintiff, and the plaintiff loaned to her the sum of $2,500. This was the consideration of the bond and mortgage described in the complaint. The trial court denied a recovery because in its opinion the estate in the mortgaged premises “devised by the aforesaid will to the said Elizabeth L. Campbell had ceased, and that such estate did cease on the day of her marriage with Joseph B. Campbell; that at that time the children, as devisees named in the will, became possessed of the absolute estate in fee in the mortgaged premises and had such absolute estate at the time the plaintiff received the mortgage, subject only to the dower estate therein of their mother; that as to them and their estate the mortgage was inoperative and void.”
    The complaint therefore was dismissed so far as they were concerned and judgment for costs was rendered in their favor. Upon appeal to the supreme court, general term, fifth department, the decision of the trial court was affirmed and the plaintiff appeals to this court.
    
      Albert H. Harris, for app’lt; A. J. Abbott, for resp’t.
    
      
       Reversing 35 Hun, 667, mem.
      
    
   Danforth, J.

It cannot be denied that the will above quoted imposed duties upon the executrix and expressly confers authority upon her, by the exercise of which those duties may be performed. She has first to pay the debts and funeral expenses; she is then given during life or until she remarries, the entire estate of every description for her own use, and upon either of those events happening, the residue and remainder of the estate goes to the children, but she is “authorized and empowered to make such advances out of that residue ” to any or either of the children as she shall in her discretion, deem best, for their maintenance and support.

The respondent contends, and such seems to be the opinion of the court below, that such advances could be made only out of the corpus of the estate, “while the wife was entitled to its use and before the children became absolutely entitled to it by the remarriage or death of the wife.” In view of the situation of the parties, this seems an unreasonable limitation. The children were young, without any means of support, and their necessities might continue after the death or remarriage of them mother. The authority to make advances was evidently designed to cover the period of infancy, and the words should not be construed in a technical sense. She was their guardian, and directed to provide for their maintenance and support, and that provision was to be in “her discretion.” There is then a provision that the amount of these advancements shall be charged to ‘ ‘ and deducted from the share or shares of any such child or children upon the final division of said rest, residue and remainder.” There has been no such division. Nor does it appear that other property came to the hands of the executrix, from which such advances could be made.

Then follows an authority to the executrix to mortgage, lease, dispose of and convey the whole of the testator’s property, according to her discretion and as she shall deem best for the purposes of carrying “into effect the provisions of the will.” It would seem apparent, therefore, that the scheme of the testator required the executrix to collect the rents, convert the land, receive its proceeds and apply them for the purposes of the will. Having th^t power and being charged with that duty, there is no reason why the disposition of the estate should not be made by the executrix after her remarriage as well as before.

In Kinnier v. Rogers (42 N. Y., 531), the language of the will, was not unlike that before us. There the testator, after directing the payment of his debts and making certain bequests, gave all the rest, residue and remainder of his estate, both real and personal, “to his children.” He named executors, authorized them to sell any part of his real estate at any time in their discretion, and execute valid deeds for the same to purchasers. It was held that he thereby invested his executors with a power in trust to convert the land into personal estate for convenience of distribution, and thus avoid the expense or delay of partition or other legal proceedings, and that the executors could convey good title. In the case before us, the executrix is authorized to sell and convey the land. She is authorized to mortgage or lease it. She is empowered to invest and reinvest the proceeds, and to do all this as to her shall seem best for carrying out the provisions of the will.

It does not appear • that the mortgage was executed for any other purpose, nor if it were, that the plaintiff is chargeable with knowledge thereof. There was, therefore, in the executrix a general power in trust (lRev. Stat., 732, § 77), and the children of the testator took an absolute fee in the land, subject to the- execution of the power. Kinnier v. Rogers, supra. Nor do we think the word “advances ’’ was used in the technical and restricted sense applied to it by the learned counsel for the respondent. The meaning of the testator should be ascertained and the words defined in view of the object to be accomplished by expenditure of money, and in that light the amount expended “for the maintenance and support ” of the children and either of them, expresses the “advance” which the executrix is authorized to make, and whether those expenditures shall be made from income or taken from the •widow’s own property, to be afterwards re-paid from rents or money obtained on mortgage or by sale, cannot be material. All these means were, by the broad language of the testator entrusted to her. Notwithstanding this, the answer of the defendants, if proven, would constitute a defense. They allege a right on the part of the executrix to make advances out of the estate for the maintenance ánd support of the children of the testator, and for no other purpose, and a right to mortgage the estate for such purpose, but declare that the plaintiff loaned the money mentioned in the complaint to the defendant, Joseph B. Campbell, for his sole use and benefit, to be used in his business, as the said plaintiff was informed. The defense, however, was not established either by the findings of the court or the evidence. But the case turned upon a construction of the will, which seems to us erroneous, and it may be that upon another trial the alleged facts will be shown-.

The judgment, so far as appealed from, should be reversed and a new trial granted, with costs to abide the event.

All concur, except Peokham, J., not sitting.  