
    In re HUNT.
    (Supreme Court, Appellate Division, Third Department.
    May 6, 1903.)
    1. Wills—Construction—Live Tenant—Eight to Use Principal.
    Testator on dying left a widow 72 years of age, and an imbecile son 45 years of age, who had always lived with his parents. The will provided that the wife should have the income and so much of the principal as she thought proper for her support and for the care of her son, with privilege to dispose of the real estate if she thought best. Upon the decease of the wife the residue and remainder was to go to certain, legatees, in trust to use the income and such of the principal as they deemed best for the support of the son, and after the death of the widow and son all the estate to go to the trustees absolutely, share and share alike. Held, that the widow took only the income and so much of the principal as she thought proper, hut hoth for the specific purposes of her support and that of her son.
    2. Executors—Supplemental Account—Transactions of Life Tenant.
    Where a will gave testator’s widow the income of the estate, and so much of the principal as she should think best for her support and for that of her imbecile. son, the residue and remainder at the death of both to go to residuary legatees, it was proper for the surrogate to require the widow, as executrix, to file a supplemental account showing in detail her transactions with the principal of the estate, including an itemized statement of incomes received and of payments made for the benefit of the son and for her own support, in order to ascertain if any part of the estate had been diverted from the purposes specified in the will.
    3. Same—Persons Entitled to—Contingent Remaindermen.
    Under Code Oiv. Proc. § 2727, providing that a person interested in an estate can make application to compel a judicial settlement of the accounts of an executor, and section 2514, subd. 11, providing that the expression “person interested” includes a person entitled contingently to share in the estate as legatee, a legatee in remainder, after the expiration of the life estate created by a will vesting in the life tenant the right to use both principal and income for specified purposes, has such an interest as to entitle him to compel the executrix to account, or to ask for a supplemental account detailing her expenditures, when brought into court upon the citation of such executrix to attend her accounting.
    Appeal from Order of Surrogate, Rensselaer County.
    In the matter of the judicial settlement of the accounts of Ruth Hunt, as executrix of Thomas Hunt, deceased. From an order of the surrogate directing the executrix to make a supplemental account, she appeals.
    Affirmed.
    Thomas Hunt, the husband of Ruth, died in 1889, leaving a will which was proven in December of that year. The provisions of the will, so far as material upon this appeal, are as follows:
    “I give and bequeath to my wife, Ruth Hunt, the income of all my estate, both real and personal, wheresoever it may be situated or located and as much of the principal as she thinks proper for her support and for the care which she shall give to our son Ohauncey, with the privilege to dispose of the real estate if my wife thinks best to do so. And upon the decease of my said wife I give such rest, residue and remainder to Ira Gifford and Allen Rathbun in trust to use all the income and as much of the principal as they think best for the support and maintenance and care of my son Ohauncey for and during his natural life, in his usual way of living, with good and comfortable clothes and good and wholesome food. Upon the decease of my said son Ohauncey, if my said wife shall have been deceased, I give and bequeath all my said estate as follows: To my brother-in-law, Ira Gifford, and my nephew, Allen Rathbun, share and share alike. * * * I nominate and appoint my wife, Ruth Hunt, executrix of this my last will and testament, as long as she shall live and upon her decease, I appoint my said brother-in-law, Ira Gifford, and my said nephew, Allen Rathbun, executors of the said fund so above bequeathed and trustees.”
    Besides his widow, the testator left surviving his son, Ohauncey, who during his entire life has been a person of unsound mind. He has always lived with and been cared for by his parents so long as they both lived, and by his mother since the death of his father. The testator left a farm upon which he and his family resided, and a personal estate shown by the inventory filed by the widow, as executrix, to be of the appraised value of $43,973.93. The farm of the testator has been sold by her for $3,500, and upon her account as executrix she has charged herself with that amount, in addition to the amount of the inventory; making a total of $47,473.93, and has taken credit for various items, amounting in the aggregate to $31,009.61, showing a balance in her hands of only $16,22,6.32. The residuary legatee, Rathbun, filed numerous objections to the account, and the surrogate thereupon made the order for a supplemental account, which the executrix has appealed from.
    Argued before. PARKER, P. J., and SMITH, KELLOGG, CHASE, and CHESTER, JJ.
    Peck & Behan, for appellant.
    James Lansing, for respondent, Rathbun.
    Charles O. Pratt, special guardian, for Chauncey Hunt.
   CHESTER, J.

The contention of counsel for testator’s widow that, under the will, she takes an absolute title to the estate of her husband if she thinks proper to accept it, does not, in my opinion, find any support in that instrument.

The testator does not, in express terms, give anything to her absolutely, but gives her the income of all his estate, and as much of the principal as she thinks proper for her support and for the care which she shall give to their son. The language of the will in this respect is plain, and the testator’s intent is reasonably clear. The income, and as much of the principal as she thinks proper, are given her, but both are given for specific purposes, and these are, first, for her support, and, second, for the care which she shall give to the son. So long as her expenditures of income and principal are fairly within the purposes mentioned in the will, they cannot be questioned, for her power to so expend appears to be unlimited; but, the purposes being clearly specified, she has no right to divert the income to other uses than those specified in the will, thereby making resort to the principal necessary for her support and for the care of the son. That this construction is correct is also apparent from the circumstances existing at the date of the will, and from the trust created therein for the benefit of the son upon the death of the widow. When the will was made she was about 72 years of age, having in the course of nature but a few years to live. The son was then about 45. He was, and probably always would be, unable to care for himself, by reason of his feeble mental condition. He had always lived with, and had been cared for by, his parents. Provision was made for his care by the widow after the death of the testator, and by trustees after her death. The testator was solicitous, not only for the support of the wife, but for the care of the son. It cannot be that it was his intention to permit his wife, under the power he had given her to use the principal of the estate, to divert it from the purposes mentioned in the will, so that upon her death there would be nothing, or but little, left for the benefit of the son. That this was not his purpose is clearly shown by the will, whereby upon the decease of his wife he gives the residue of his estate to Gifford and Rathbun, in trust to use all the income and as much of the principal as they think best for the support, maintenance, and care of the son.

The surrogate, in the order, appealed from, has required the executrix to file a supplemental account showing in detail her transactions with the principal of the estate, an itemized statement of all the income received, and a statement in detail of the payments made for the benefit of the son and for her own support. If the provision requiring a statement of expenditures for the benefit of the son and for her support was an attempt to procure an accounting by the widow of her expenditures of income as a life tenant, it could not be upheld, but that is not the purpose of the order. The claim is that the estate has been used by the executrix for purposes not authorized by the will, and the fact that she is a life tenant, entitled to use the income and as much of the principal as she thinks proper for the purposes mentioned in the will, cannot shield her from an accounting in her trust capacity, so that her management of the estate as executrix, and its condition, may be shown. I think, under the circumstances appearing here, the order appealed from was properly made, in order that it may be ascertained if any part of the estate has been diverted from the purposes specified in the will. ■

It is also urged that the respondent, Rathbun, has no such present interest in the estate as to justify the further account at his instance. He was recognized as having an interest by the executrix in her petition for an accounting, and by her citing him to attend upon it. He has a contingent interest as a residuary legatee under the will. Under Code Civ. Proc. § 2727, “a person interested in the estate” can make an application to compel a judicial settlement of the accounts of an executor, and the expression “person interested,” where it is used in connection with an estate, includes a person entitled contingently to share in the estate as legatee. Id. § 2514, subd. 11. If, as appears clear, Rathbun has such an interest as to give him a right to compel the executrix to account in the first instance, his interest will also qualify him to ask for a supplemental account when brought into court upon the citation of such executrix to attend her accounting.

The order should be affirmed, with costs to the respondent, Rathbun, to be paid out of the estate. All concur. 
      
       3. See Executors and Administrators, vol. 22, Cent. Dig. §§ 1981, 1982.
     