
    John Holden, App’lt, v. Charles D. Strong, as Ex’r., etc., of Heman Holden, Dec’d, et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed November 26, 1889.)
    
    1. Will—Construction of—Trust for benefit of weak-minded son.
    Where a testamentary trustee is directed to use the remainder of the estate amounting to $9,353 as shall be necessary in his judgment for the benefit of an eccentric, and at one time insane, son of testator, the son is entitled to his support and maintenance according to his condition in life, even though he may be able to support himself by his own exertions.
    '3. Same.
    It is not necessary for the son to remain idle to receive the benefit of the provisions of the will, nor will his having saved up money deprive him of the right to support, and an allowance of less than $100 a year by the trustee would not be considered sufficient under the circumstances.
    3. Same.
    Should the insanity of the son return, the trustee should attend to the expenditure of his money, but as long as he remains rational, prudent and saving it is not an abuse of discretion to allow him to take the annual or semi-annual appropriations to expend for his own comfort in his own way.
    Appeal from a judgment of the general term, fourth department, affirming a judgment entered upon a decision of the Schuyler special term.
    
      John J. Van Allen, for app’lt; W. L. Norton, for resp’ts.
    
      
       Affirming 34 Hun, 635, mem.
      
    
   Haight, J.

This action was brought to procure a judicial construction of the will of Heman Holden, deceased, the father of the plaintiff, and to procure a decree, giving directions to Charles D. Strong, the executor and trustee, as to the amount that he should pay over to the plaintiff annually, and to recover from him a sum sufficient to compensate the plaintiff for his past support and maintenance.

The trial court has found as facts that Heman Holden died on or about the 17th day of May, 1874, leaving a last will and testament, which has been duly proved and admitted to probate, and by which he appointed the defendant Strong his executor and trustee, and gave to him as such trustee the residue and remainder of his estate, in trust for the benefit of the plaintiff during his natural life, and directed that the estate should be converted into money and invested in good interest bearing securities and gave to such trustee full power and authority to use so much of the trust fund, either interest or principal, as shall in his judgment and discretion be necessary for the proper care, comfort and maintenance of the plaintiff so long as he shall live, and after his death and the payment of his funeral expenses he directed that the trust fund be distributed among the heirs-at-law of the testator. The residuary estate thus coming into the hands of the trustee was the sum of $9,358.05, which was invested by the trustee so-as to draw interest ; that the amount paid by the trustee, up to the time this action was brought in 1881, for the support and maintenance of the plaintiff was the sum of $672.05, $350 of which was paid under an order of the surrogate. It was further found as facts that the plaintiff was about forty-seven years of age, unmarried, engaged in repairing clocks and sewing machines and in sewing in families-whenever he could obtain such employment; that he possesses many eccentricities and vagaries; has been insane and was at onetime an inmate of an asylum; that he possesses neither a vigorous and healthy body nór a very' well balanced mind; that it-would' require about the sum of $400 per year to properly support and maintain him when in the enjoyment of usual health; that the defendant has never refused or neglected to support and maintain the plaintiff, but has always since the trust fund came-into his hands been ready and willing to pay for and supply the plaintiff with proper board, clothing and care arid pay all other necessary expenses for his proper support, but that the plaintiff has, in a great measure, refused to allow him to do so. As conclusions of law the court found that it was the duty of the defendant Strong as such trustee to exercise a fair and proper discretion in administering the trust and to support the plaintiff in a-proper and comfortable manner for one in his condition of life, provided the plaintiff will allow him to do so, although the-plaintiff may be able to support himself by his own exertions, but that the determination of the question whether such support should be furnished by paying the plaintiff a sum equal to the value of such support or by furnishing him proper' board, clothing and a reasonable sum for such other expenses as would be properly incurred by supporting him, rests in the sound discretion and judgment of the trustee and will not be interfered with by the court, unless it shall be unreasonably exercised or abused; that the trustee is riot shown to be guilty of any improper or unreasonable action in the administration of the trust; and judgment was, ordered for the defendant with costs to be paid out of the trust fund.

Exceptions were taken to these findings, and we have carefully examined the evidence for the purpose of seeing whether they are-sustained by it. The general term has the power to review findings for the purpose of seeing whether they are against the-weight of evidence, but this court only reviews exceptions taken, and only examines the evidence for the purpose of determining whether there is any evidence that sustains the findings. In the examination we have made, we find some evidence which supports each proposition found by the trial court, and, consequently, inasmuch as the findings have been affirmed by the general term, we must now consider them final and affirm the judgment; but, in doing so, we wish to state, for the future guidance and conduct of the trustee, that we are not entirely satisfied with the manner in which he had discharged the duties of his trust to the plaintiff up to the time that this action was commenced. Only $672 had been used. for the support and maintenance of the plaintiff, being less than a hundred dollars per year, and over half of that had been compelled by an order of the surrogate. We fully agree with the trial court in its construction of the will, that the plaintiff is entitled to his support and maintenance according to his condition in life, even though he may be able to support himself by his own exertions. We do not understand that in order to receive the benefit of the provisions of the will it is necessary for him to remain idle and refrain from all personal exertion; neither does the fact that he is frugal and saving and has accumulated a fund which he has deposited in the bank deprive him of the right to the support provided for him. The trial court properly held that the trustee was to exercise a sound judgment and discretion as to whether the money necessary for the support and maintenance of the plaintiff should be delivered to him, and he allowed to procure it, or whether the board, clothing, etc., should be purchased and provided for him by the trustee.

The testator, in making this provision, undoubtedly had fears that the plaintiff’s insanity might again return, although twenty-five years have elapsed since he was so afflicted. Should such, or similar conditions again recur, it certainly would be the duty of the trustee to attend to the expenditures of the money himself, but as long as the plaintiff remains rational, prudent, industrious and saving, there can be no abuse of discretion in allowing him to take the annual or semi-annual appropriations to expend for his own comfort and maintenance in his own way and in the gratification of his own choice.

The judgment in this case dismisses the complaint on the merits. In this respect it may be irregular as not conforming to the decision. The trial court did construe the will which was one of the reliefs demanded in the complaint and the plaintiff had the right to have the judgment conform to the decision in this regard. But this is an irregularity which could have been corrected on motion.

The judgment should be affirmed, with costs payable out of the trust fund.

All concur, except Follett, Oh. J., not sitting.  