
    Matter of Francis A. Trelease, Deceased.
    (Surrogate’s Court, Kings County,
    January, 1906.)
    Wills—Interpretation — Quantum of estate or interest — Gifts with general beneficial use or right to consume — Bight of legatee to possession of corpus.
    Where a testator bequeathed personal estate to his wife, the money to be invested on bond and mortgage or “ in other property ”, and to be kept distinct from any that she might inherit from her father’s estate, she to have the income and the right to use the principal as she might need it, and bequeathed what remained thereof at her death to his two brothers or the survivor of them, the widow is entitled to the possession of the corpus of the estate after payment of debts and charges and, as executrix, sufficiently accounts for two thousand dolíais, with part of which she purchased a house, by stating that she paid it to herself as legatee; and such part of the estate held by her co-executor should, upon his accounting, be turned over to her.
    Proceedings upon the judicial settlement of the accounts of Walter K. Trelease and Mary A. Trelease, as executors of the last will and testament of Francis A. Trelease, Deceased.
    Robert M. Boyd, Jr., for Walter K. Trelease.
    Frederick M. Harris, for Mary A. Trelease.
   Crane, County Judge, Kings Co., acting Surrogate.

Francis A. Trelease died in March, 1901, leaving a last will and-testament, wherein he provided as follows: “ 3rd. If the proceeds of my interest in the said firm (Trelease & Under-hill) together with other money or property of mine shall amount to the sum of thirteen thousand dollars, I give and bequeath that sum to my wife, Mary A. Trelease, the money to he invested on bond and mortgage or in other property, and she shall have the income thereof; and she shall have the right to' use the principal as she may need it, but I direct that the money be kept distinct from any that she may inherit from her father’s estate.

“ 6th. Should my estate exceed fourteen thousand dollars, I give to my wife, Mary A. Trelease, the balance upon the same terms mentioned in clause 3rd.

“ 7th. If at the death of my wife, Mary A. Trelease, she shall not have used up the principal of my estate, I give and bequeath what remains to my brothers, Samuel R. Trelease and Walter K¡. Trelease, share and share alike, or in case either shall have died it shall go to the survivor.”

Mary A. Trelease and Walter K. Trelease were appointed executors, both of whom have qualified. The deceased left about $34,000 in personalty.

The two executors appear to have disagreed in the management and control of the estate and to have had some misunderstanding as to the disposition of the funds under the above-mentioned instrument.

Walter K. Trelease, having possession of a portion of the property, has rendered and filed his accounts, to which all objections have been withdrawn. Mary A. Trelease, having received into her possession as executrix about $2,000, has accounted by stating that she has paid the same to herself as legatee. This account has been objected to by the co-executor and residuary legatee, his claim being that Mary A. Trelease is entitled solely to the income from the estate in the first instance, and not to the possession as legatee of any part of the principal, and should, therefore, be charged with the amount she received. ¡Necessarily this contention requires the construction of the will and a statement of the rights and powers of Mary A. Trelease as legatee. Matter of Fernbacher, 17 Abb. N. C. 339.

The testator bequeathed his property to his wife, “ the money to be invested on bond and mortgage or in other property and she shall have the income thereof and she shall have the right to use the principal as she may need it.” It is only in case she shall not have used up the principal of the estate that the sum remaining is given to the brothers.

It is apparent that the intention of the deceased was that Ms wife should not only have the income from his property, but also the principal if she needed it. He so stated.

She took more than a life interest and could use the principal as necessity required. Of this necessity she was the sole judge. Matter of Grant, 16 N. Y. Supp. 716, 86 Hun, 617; Matter of Parsons, 39 Misc. Rep. 126; Swarthout v. Rainer, 143 N. Y. 499.

It was not for her co-executor or the contingent residuary legatees to determine, neither for the court to limit.

If the widow therefore had the right to the income, also the principal as she might need it, who would he entitled to the possession of the principal after all the debts and •charges of the estate had been paid ?

It will be noticed that the will appoints no testamentary trustees.

According to the cases very similar to this which the •courts have passed upon, the person having the life estate with power of using the principal, has received and retained the possession of the corpus of the estate without giving security. Thomas v. Walford, 49 Hun, 155; Champion v. Williams, 12 N. Y. Supp. 697.

Judge Peckham said, in Matter of McDougall, 141 N. Y. 21: “ In other cases where it has been held that the legatee was entitled unconditionally to the possession of the legacy without security, other facts existed, such as where the lan.•guage of the will made it manifest that the testator intended to give to the legatee power to use in his discretion some portion of the corpus of the estate for his support.” Matter of Grant, 16 N. Y. Supp. 716, 86 Hun, 617; Matter of Parsons, 39 Misc. Rep. 126; Terry v. Rector of St. Stephen’s Church, 79 App. Div. 527; Swarthout v. Ranier, 143 N. Y. 499.

The attorney for the residuary legatees has cited a number •of cases which are to he distinguished from this, and which illustrate the different results flowing from a simple life •estate and a life estate with power of disposing of the principal during life. In the former cases the legatee of the life estate has simply the income and cannot take possession •of the corpus of the property without giving security, while in the latter the rule is that which I have applied to this case.

In these cases, referred to by objector’s counsel, there was solely an express life estate or the will as construed evidenced tke intent to create simply a life estate and no power to draw on the principal.

The will of Francis A. Trelease would also' indicate his intention that his wife should possess as legatee the corpus of the estate. Paragraph 3 closes with the injunction, “ but I direct that the money be kept distinct from any that she may inherit from her father’s estate.” Clearly the testator contemplated his wife’s possession of the principal of his estate, otherwise there was no danger of her mixing the moneys with those from her father’s estate. ¡Neither she nor Walter ¡K. Trelease, as executors of the testator’s will, would receive the moneys from the estate of Mrs. Tfelease’s father. As whatever she inherited from her father she would possess in her individual capacity and could not mix with those funds she and Walter K. Trelease might have, as executors, the likelihood of confusing the funds, requiring the testator’s warning and direction, would only arise when she possessed both funds as legatee or in her individual capacity.

It appears from Mrs. Trelease’s affidavit made in this proceeding that she has bought a house with a part of the two thousand dollars received from her husband. This has been held not to be an improper investment. Matter of Grant, 16 N. Y. Supp. 716.

Besides the will provides that the money may be invested in bond and mortgage or in other property. Purchasing real estate could be such other investment.

Of course the amount so invested would pass to the residuary legatees upon the death of Mrs. Trelease. She could! not give or will away the estate which she held in trust to use only as she needs it. Terry v. Rector of St. Stephen’s Church, supra.

The $2,000, therefore, paid by Mrs. Trelease to herself as legatee, was rightfully transferred, she has properly accounted therefor and the objections are over-ruled; According to this, all the property held by Walter ¡K¡. Trelease, as-executor, should also, upon his accounting, be transferred to the widow.

Decreed accordingly.  