
    Minnie G. Oberndorf, Respondent, v. Farmers’ Loan and Trust Company and Edward Oberndorf, as Trustees under the Last Will and Testament of Julius Oberndorf, Deceased, Defendants, Impleaded with William D. Oberndorf, Appellant.
    First Department,
    December 29, 1911.
    Will—construction—trust—rights of beneficiary’s wife-—husband and wife — right to support — separation.
    Where a testator left his residuary estate in trust and directed the trustees to pay one-half of the income to testator’s son during his life “ for the benefit of himself and family,” the son’s wife, who after the testator’s death left her husband, cannot maintain an action against the trustees for a construction of the will and to compel them to pay her a part of her husband’s share of the income.
    Although testator by the will expressed his wish that the son should use the income for his family’s benefit as well as his own, that did not create a trust for the benefit of the son’s wife which she could enforce against the trustees of the estate and against her husband.
    Whatever rights the wife has to support from her husband must be determined in an appropriate action for separation, where the requisite facts to justify the allowance of alimony can be established.
    Appeal by the defendant, William D. Oberndorf, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of January, 1911, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Gustavus A. Rogers [Willis Bruce Dowd with him on the brief], for the appellant.
    
      I. N. Jacobson, for the respondent.
   Dowling, J.:

Minnie G. Oberndorf, the plaintiff, married William D. Oberndorf, the defendant, on October 3,1893. Some two years thereafter the latter’s father, Julius Oberndorf, made his will, whereby, among other things, he disposed of his residuary estate by ■ giving, ■ devising and bequeathing the same to his executors and trustees in trust for certain uses and purposes, whereof so much as is material to the present appeal is to he found in paragraph V, subdivision F, as follows: “I authorize and direct my said executors and trustees to pay out of the trust funds an equal one-half part of the net income of my said residuary estate to my son, William D. Oberndorf, during the period of his natural life, for the benefit of himself and family, and that the said one-half part of the income of my said residuary estate be paid to him in equal' quarter-yearly installments on the first days of January, April, July and October.” Upon the death of his son the income was to be paid to his issue until they reach the age of forty, when they were to receive then-shares of the principal. Should his son die without issue, the. income was to go to testator’s grandchildren, nephews and nieces. He made a codicil to his will September 26, 1896, in the course of which he provided for a contingency which had not been guarded against in the will, viz., the death of Ms son without issue, but leaving a widow. He, therefore, directed in such event that if no issue survived .the son, the widow should receive for life all the income before referred to; but should there be children, the executors were to apply one-half the income to their support, maintenance and education and the other one-half to the support and maintenance of the widow.- Julius Oberndorf died October 21, 1896. In September, 1907, according to the allegations of her complaint, plaintiff left the home of her husband for good cause. There: after an agreement of separation was made by which she received $1,000 per year for life from her husband, and he authorized the executors and trustees of his father’s estate to pay her that sum out of his. income. Since November, 1900, however,, this authorization has been revoked and no payments have since been made thereunder. There is no issue of the marriage.

Plaintiff now brings this action for the construction of the will of Julius Oberndorf, deceased, and for an adjudication that the trustees thereof are trustees for her benefit as well as that of her husband, that the -income be apportioned and that she be paid the sum of $1,000 annually in quarterly installments. For this relief she has had judgment, the court having found as conclusions of law that Julius Oberndorf intended by his will that the one-half of the income left under the provision quoted should he devoted to the benefit of plaintiff as well as that of her husband; that she is the only family of her husband; that she is entitled to have provision for support and maintenance from her husband; that the manner and style of living of husband and wife while they lived together justified an allowance of $1,000 annually to her; that the trustees under the will are trustees for her, and that she is entitled to receive that amount out of the income.

The objection to this determination- is, that this is not an action brought for a separation. It is not founded upon the separation agreement. That was expressly stated at the close of the case and the agreement is not in evidence. There is no proof that the husband abandoned his wife, nor has she shown that her leaving his home was justified. There is no proof of the husband’s means, nor of what resources the wife has, nor that she is without property and unable to support herself. It is not even shown that the husband has failed to support her. Plaintiff’s contention rests solely on the terms of the will, and by it she claims a trust has been created for her benefit, enforcible against the trustees of the estate and her husband. This view can find no support in the provisions of the will. The appellant now concedes, what was disputed in the trial court, that the wife is to be regarded as a member of the husband’s family for the purposes of this will. But granting that, all that was expressed by testator was his. wish that the son, when he received his income, should use it for the benefit of his family as well as his own. This was no more than the duty he owed them, in any event. The trustees under the will were vested with no discretionary powers; they were not directed to apply the income in any way, nor to supervise its distribution; they were ordered to pay the entire share of the income over to the son, and their powers and duties ended there. The wife was not named as a beneficiary, except in the event of her husband’s death, when the trustees were instructed specifically what to do in the contingencies that might then arise. The cases cited" by respondent are those wherein the trustees had duties to perform in respect to the fund and were charged with, the responsibility of seeing that it was applied to certain designated purposes. That is not this case. Here the only direction to the trustees is to pay to the son. ^ Nor is there any method by which it may he determined that the testator meant that any specified part of the income should go to his daughter-in-law. Whatever rights plaintiff may have to support from her husband must be determined in an appropriate action for separation,, when the requisite facts to justify an allowance of alimony can he established.

Under the will of Julius Oberndorf she took nothing directly; the trustees were to set apart no sum for her support, and she is without recourse against the estate. - We are not now concerned with the question of what her husband’s duties towards her may be, whether under the will or apart from it.

The judgment appealed from must, therefore, he reversed, with costs, and judgment directed in favor of the defendants dismissing the complaint herein, with costs. .

Ingraham, P. J., McLaughlin, Clarice and Scott, JJ., concurred.

Judgment reversed, with costs, and judgment Ordered as directed in opinion, with costs. Order to be settled on notice.  