
    No. 75
    MOORE, Admr. v. BLAUSER, Admr.
    No. 20172.
    Supreme Court
    On motion to certify.
    Dock. Nov. 17, 1926,
    4 Abs. 774.
    473. ESTATES — Where testator provides that widow is to “use” property and has control thereof, is her estate liable for the amount which testator’s estate has been diminished, she having been administratrix of her husband’s estate?
   The decedent, Mary Beem, was the widow of Alonzo Beem, who died in 1917, and she was appointed executrix of his estate and in 1917 her account showed a balance of $30,719.33 due his estate. She died in 1924 and James L. Moore was appointed administrator of her estate.

Moore filed his account showing a difference of $2948.92 between the amount of assets coming into his hands belonging to the estate of Alonzo Beem and the amount shown by Mrs. Beem’s first account as belonging to her husband’s estate. The Lirking Probate Cosrt made a finding against her estate for this amount.

John Blauser, as the administrator de bonis nom of her husband’s estate brought this action in the Licking Common Pleas where a decision was had in his favor. The Court of Appeals affirmed this judgment and error was prosecuted to the Supreme Court. ■

It is claimed that item 3 of the will of Alonzo eBem provided: — “I give, devise, and bequeath to my wife Mary Beem, the control, use, possession, proceeds and income, all the balance of my property, real, personal and mixed of every description-, and if use, income and proceeds be insufficient for her comfortable support, she may sell-etc.” It is contended therefore that the word “use” is susceptible of two intentions on part of the testator. First, that it gave to the widow a right to personal property as may become necessary for her comfortable support and second it gave her the right to invest and reinvest the corpus as well as the income and proceeds of the personal estate.

Attorneys — Eugene Moore and Fitzgibbon, Montgomery and Black for Moore; Flory and Flory for Blauser; all of Newark.

It is further urged that, if in re-investing a portion of the personal property, she made a bad investment, her estate should not be held liable; and that the testator never intended she should become personally liable when he gave her the unlimited use and control of the property. _

_ It is eontesded that in order for Blauser to recover it must be shown that the widow improperly used a part of the estate and that the loss resulted in consequence.  