
    In the Matter of the Judicial Settlement of the Accounts of Alexander Traver, as Executor, etc.
    
      (Surrogate’s Court, Rensselaer County,
    
    
      Filed September, 1894.)
    
    1. Surrogate’s court—Decree—Opening.
    A surrogate lias power.to vacate his own decrees upon application, for sufficient reason in furtherance of justice.
    2. Will—Construction.
    A bequest to the widow during her natural life, with right to use as much of the principal as she might require, and the surplus, if any, to be equally divided between other persons, gives her no vested interest in any portion of the principal.
    Application to open a decree.
    
      C. Rockafeller, for Nicholas S. Miller, executor, etc., of Martha Melius, widow; John B. Hoag, for Alexander Traver, executor, etc., of Henry Melius.
   Lansing, S.

Two questions are presented upon this application.

The first is a technical one, and relates to the opening of the decree.

The second involves the construction of the provision of the will of Henry Melius, above set forth.'

Technically, Martha Melius in her lifetime had her day in court. Both she and her personal representative are bound by the decree. She was duly and legally cited to attend' the judicial settlement of the accounts of the executor of her late husband and failed to appear. She was not'of unsound mind, but it appears that she was sick and unable to transact business at the time she was cited, and probably had no actual knowledge of the hearing.

Under the circumstances of this case I have no doubt of my power, under subdivision 6, § 2481 of the Code of Civil Procedure, to open the decree.

It appears to be a case of excusable default:

“ The surrogate has the power of a court of general jurisdiction to vacate his decrees, and relief may be granted as in the supreme court upon the application of any one for sufficient reason in furtherance of justice.” Matter of Flynn, 136 N. Y. 287; 49 St. Rep. 388; Matter of Tilden, 98 N. Y. 434; Matter of Filley, 47 St. Rep. 428.

But a more serious question arises as to my duty to open this decree. This the law permits only for a sufficient reason and in furtherance of justice.

Undoubtedly if the petitioner show in addition to the excusable default of his testatrix that she has suffered manifest injustice in the decree herein, a case will be made to open it.

This brings me to the question of the construction of the said provision in the will in connection with the facts and circumstances of this case.

It is claimed by the petitioner that the widow, under the will of her deceased husband, was absolutely entitled to receive her necessary support from the principal of said sum of $1,000 provided for her use, without reference to her own income or estate, and this whether she demanded it during her lifetime or not; that the right to have and enjoy it was a vested right; that it became vested whenever it appeared that she needed it for her support.

It was further insisted that since it appears that the widow was compelled to encroach upon the principal of her own estate for her support and maintenance, her personal representative is entitled to be paid an amount at least sufficient to make good the principal of her individual estate.

To this it was answered that the widow by her acts and declarations had in her lifetime manifested a clear intent to waive all right to the fund in question and that such waiver concluded her personal representative.

I am satisfied that this view is untenable. If the widow had an absolute or vested right to the fund, neither her failure to demand or receive it nor her alleged acts or declarations in waiver of her right would divest her or her personal representative of such interest.

But this applicatian must be denied upon another ground. It involves an entire misapprehension, as I conceive, of the law governing the construction of the clause of the will in question.'

Provisions in wills similar to the one in this case have'been frequently before the court for construction.

It is well settled under the authorities that the widow took a life estate only in the sum of $1,000, with the right to use such portion of the principal as she might require during her lifetime, and that the limitation over to the daughters of the testator is valid. Colt v. Heard, 10 Hun, 189; Crozier v. Bray, 120 N. Y. 366; 31 St. Rep. 506; Wells v. Seeley, 47 Hun, 109; 13 St. Rep. 239; Smith v. Van Ostrand, 64 N. Y. 278.

It follows that the widow had a right to the income from the sum in question absolutely, but the right to the principal de pended upon the condition that she should apply it to her use, or at least demand it for that purpose, during her lifetime ; failing this, immediately upon her death the limitation over took effect and the daughters of the testator became entitled to the unexpended principal.

In the view which I have taken I do not deem it important to decide the question (much, discussed upon the argument) whether the word “require” -in the clause in question should be held to mean “ demand” or “need,” for I do not think the testator used the word in a technical sense.

If the ordinary support of the widow, in her judgment, required the use of the money, she was entitled to use it for that purpose ; whether that was the extent of her right it is unnecessary to decide here, but her right to dispose of it was unquestionably limited to her lifetime.

Doubtless a demand upon the executor in some form was required (it having remained in his possession) in order to perfect the widow’s right to the fund and avoid the limitation over. Perhaps when that right once became perfected by a demand by the widow and a wrongful refusal by the executor, it would survive to her, executor, but it is not necessary to decide that question, for concededly she did not demand it during her lifetime.

Manifestly, under the authorities, the widow had no vested right or interest in any portion of the principal; therefore, no portion of it passed under her will, nor had she perfected, or sought to perfect, her claim to the principal or any portion of it so as to create .a right of action which survived her.

It, therefore, follows that the petitioner’s claim, which it based upon the assumption that his testatrix had an interest in said principal sum which survived her death, is utterly untenable.

The cases of Holden v. Strong, 116 N. Y. 471; 27 St. Rep. 529; Estate of James Riley, 4 Misc. Rep. 338; Matter of Dickerman, 34 Hun, 585, which the petitioner cites, furnish no support for his contention.

In the case of Holden v. Strong, the trustee was given full power and authority to use so much of the trust estate, either principal or interest, as shall in the judgment and discretion ” of said trustee “ be necessary for the proper care, comfort and maintenance” of said beneficiary during his life.

The court held} construing this provision, that neither the fact that the beneficiary was able to support himself by his own exertions, or that he was frugal and saving and had accumulated a fund in the bank, would deprive him of the right to the support provided for him.

The other cases are to the same effect.

These cases simply illustrate the liberality of the courts in enforcing provisions made for the support of beneficiaries who demanded or required the benefits of the same during their lifetime, but do not furnish the slightest support to the petitioner’s contention that provision made for the support of a beneficiary, but not claimed or demanded by him in his lifetime, can be recovered by his personal representative where there is a valid limitation over, in the case of his death.

Application denied, with costs.  