
    In the Matter of the Judicial Settlement of the Accounts of Alexander Traver, as Executor, etc., of Henry Melius, Deceased.
    
      (Surrogate’s Court, Rensselaer County,
    
    
      Filed September, 1894.)
    1. Surrogates, — Opening degree.
    A surrogate has power to open his decree on application of a party who was cited, but who was sick and unable to transact business at the time and who probably had no actual knowledge of the hearing.
    
      2. Will — Libe tenant.
    A bequest to a widow of tbe use of a specified sum for life, witb tbe right to use as much of the principal as sbe might require, gives her no vested right in the principal, and where sbe does not make any claim therefor during her life for her support, but expends her own money, her executor cannot recover the amount so expended by her.
    This is an application to open the decree heretofore made in this matter by the surrogate of this county.
    The application is made by the executor of the last will, etc., of Martha Melius, widow of Henry Melius, deceased, upon the following grounds:
    1. An excusable default.
    
      2. That the granting of the relief sought would be in furtherance of justice.
    The will of Henry Melius, among other things, provides as follows:
    “First. I give and bequeath tO' my wife Martha the sum of $1,000, of which she is to receive the use during her natural life, and as much of the principal as she might require^ and should any surplus remain, it is to be divided equally between my daughters.”
    The deceased left him surviving his widow, the said Martha Melius, and three adult daughters, children by a former marriage. Martha Melius died July, 1893, having survived her husband about three years.
    At the time of his death, she was possessed of personal estate only, principally money, which, with a set-ofí allowed her from the estate of her husband, amounted to about $1,400. She occupied without charge, by the consent of the devisee of heríate husband, a dwelling house and lot containing eight acres of land down to September, 1892.
    Her husband owed her at the time of his death about $350, for which she held his note.
    After the death of her husband she received the income from the $1,000, set apart for her use, and whenever she required more money she would apply to the executor of her husband for it, saying, “I will indorse it on the note,” referring to the note of $350 held by her against his estate, “as I do not wish to disturb the $1,000,” or words to that effect. This continued down to February, 1892, when she had a stroke of paralysis, after which she could not move without assistance, and was unable to transact business or even to- speak.
    Robert Bennett, the person with whom she resided, applied to the said executor after her attack for money for her use, and the executor paid the amount called for, and indorsed the same upon the aforesaid note, as she had formerly done, until the note was reduced to about $130, when the executor paid the balance to Mr. Bennett and took up the note.
    It is admitted that the widow used a portion of the principal of her own estate for her necessary support; also that a balance of unpaid interest upon the said $1,000 was paid her executor after her death. Mrs. Melius, at the time of her death, left an estate of about $700 only, the balance having been principally necessarily expended for her support.
    O. Rockafeller, for Nicholas S. Miller, executor, etc., of Martha Melius, widow; John E. Hoag, for Alexander T-raver, 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 provisions 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, sec. 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; Matter of Tilden, 98 N. Y. 434; Matten of Filley, 47 St. Rep. 428.

Put 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 application 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; Wells v. Seeley, 47 Hun, 109; 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 depended 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 is 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; 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 slighesfc 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.  