
    Joseph Tope v. Mary Tope.
    Where the testator provides in his will that his wife “ shall have her maintenance off of the farm devised to his son Joseph, while she lives, * * that the said Joseph is to let her have the house while she lives; and that he, moreover, is to furnish her with everything necessary for her comfort while she lives,” if the widow shall refuse to occupy the mansion-house and receive her support on the farm, hut prefers to reside elsewhere, it will he the duty of the son charged with the maintenance, to pay her whatever sum it may he considered worth to support her on the farm, and no more.
    This is a writ of error to the Court of Common Pleas of Jefferson county.
    
      The original action was assumpsit, tried at the November ■ term, 1848, to a jury, and verdiet.for plaintiff $351.
    The bill of exceptions taken on the trial shows the following facts:
    John Tope, the husband of plaintiff and father of defendant below, by his last will and testament devised to the defendant a farm on which the testator then resided, and charged it with certain specific legacies which he was directed to pay, amongst which is a bequest to his wife Mary Tope, the plaintiff below, in these words: “ She is also to have her maintenance off of the farm on which I reside, while she lives. * * The said Joseph Tope is to let my beloved wife have the house in which I now live while she lives; also he is to furnish her with every thing that is necessary for her comfort while she lives.” John Tope died on the 28th day of October, 1844. The widow elected to take under the will, and Joseph accepted and took possession’ of the property devised to him immediately upon probate of the will.
    Mary Tope resided in the mansion-house after her husband’s death, until the 18th of January, 1845, when she removed and went to reside with one Roland, where she lived about one year. Since that time she had lived at sundry places, but at no time with the defendant, or in the mansion-house, having derived her support from other persons than Joseph. After the 20th of January, 1845, Joseph occupied the mansion-house and the farm. He went into the mansion-house by request of Mary, when she went to live with Roland, with whom Joseph made a contract for her support. This contract was terminated by Roland’s removal from the county, after which, Joseph repeatedly solicited her to occupy a room in the mansion-house, with a separate, out-door entrance, and offered to hire a girl to' take care of her, and purchased clothing and offered to her, and had always offered to provide her a maintenance, if she would come upon the farm and into the house — all of which-she steadily refused, insisting upon the whole house, and a suf ficient sum for her support wherever she chose to live.
    The court charged- the jury that the mother was not bound to reside upon the land to entitle her to a support; that she might- reside with whom and where she pleased, and that the defendant would be liable to her for an amount sufficient for her comfort, while she lived — that it was not a fulfillment of the obligation to be ready and willing, and to offer to furnish her with every thing necessary for her support, on the farm.
    The court also charged the jury that she was entitled to recover for the use and occupation of the house. These charges were excepted to by defendant’s counsel, and it is assigned for error that the court of common pleas erred in these instruc tions to the jury.
    
      It. S. Moody, and H. It. Uchley, for plaintiff in error.
    
      Stanton Mo Cook, for defendant.
   Spalding, J.

There can be no doubt that the testator con templated that his wife, after his death, would continue to reside in the mansion-house, and receive her support from the products of the farm; but this is not cumpulsory.

We cannot construe the will in such a manner as shall force her, either to reside upon the farm, or to lose the support provided for her by her husband.

The whole of the dwelling-house is given to her, and must be subject to her control.

In addition to this, it is the duty of Joseph to furnish her with necessary and convenient food and raiment, fire wood and candles, medicine and medical attendance, and whatever else may be necessary for her comfort during life, provided she sees fit to occupy the mansion-house and live on the farm. But if she prefers to take up her abode elsewhere, then the rent of the house will be hers, and she will be entitled, in addition thereto, to such a sum in money as will be equivalent to the cost of her maintenance in said dwelling-house, and upon the-farm.

The only error to be found in the charge of the court below is this: That she might reside with whom and where she-

pleased, and the defendant would be liable to her for an amount sufficient for her comfort while she lived.”

If Mary Tope chose to reside at the Astor House, in New York, we think the defendant would not be liable to her for an amount sufficient for her comfort while there. We think she may reside in New York or Philadelphia, however, and in that case Joseph will be liable to pay her whatever sum it may be considered worth, to support her comfortably in the mansion-house, and upon the farm devised to him.

As the charge of the court, in our opinion, goes beyond this, it is in that respect erroneous, and the judgment of the common pleas is, therefore, reversed.  