
    In the Matter of the Judicial Settlement of the Accounts of Benjamin F. Grant, Ex’r, etc., of James Benedict, Dec’d.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    1. Executors and administrators—Accounting—Monets expended by" widow.
    The will of testator gave to his widow the right to possess and enjoy the-rents and profits of his estate during her life, and that if they were not sufficient for her support a sale might be had, with remainder over after her decease. No trustee was provided for. Held, that the widow was entitled to possession of the corpus of the estate, and that the executor-was not chargeable with the moneys expended by her for her support, including money spent for the purchase of a house, or for moneys paid by her to one whom she recognized as a creditor of the estate, although the. evidence as to the indebtedness was slight.
    2. Same—Funeral expenses.
    Allowance should not be made to the executor for tombstone and funeral expenses in the absence of vouchers therefor or proof that the amounts, claimed have been paid.
    
      3. Same—Distribution.
    The decree on a settlement of an executor’s accounts directed distribution among testator’s four children, it having appeared in the early part of the proceeding that testator left only four, when in fact there were five. Held, that the decree should be amended in this particular.
    Appeal from the decree made and entered in the surrogate’s court of Steuben county May 2, 1890, settling the accounts of the executor.
    
      J. O. Sebring, for app’lts and legatees; J. F. Parkhurst, for resp’t executor.
   Lewis, J.

We think the learned surrogate gave the correct construction to the clause of the will providing for the testator’s widow.

It gives her the right to possess and enjoy the rents and profits of the entire estate during her natural life, and it further provides that if the use and profits are not sufficient for her support that a sale thereof may be made for her support The remainder over, after the decease of his wife, he gives to his children and grandchildren, and appoints his wife one of the executors of the will.

No trustee of the fund is provided for during the lifetime of the wife.

Who but the widow is to determine how much she may need for her support ? and if she is to decide, she must necessarily have possession of the corpus of the estate. Smith v. Van Ostrand, 64 N. Y., 278; Flannagan v. Flannagan, 8 Abb. N. C., 413 ; Matter of Woods, 35 Hun, 60; Thomas v. Wolford, 1 N. Y. Supp., 610; 16 N.Y. State Rep., 764.

This disposes of the question as to the money used by the widow for the support, including the amount invested in the purchase of the house and lot, for if she was entitled to the possession of the funds of the estate for her support, she was given the power to decide as to the propriety of the purchase of a dwelling house to reside in. It appears from the case that the house and lot she purchased was, after her death, sold pursuant to judgment in an action of partition and the proceeds divided amongst the testator’s heirs, including the contestants appellants.

The judgment was a sufficient voucher and the amount thereof was properly allowed.

The evidence of the indebtedness of the estate to Luther A. Wing is not very satisfactory. There is, however, some evidence tending to show that the testator was at the time of his death indebted to Wing for money paid. Mrs. Benedict recognized the indebtedness, and we think she was justified in so doing; and being entitled to the possession of the funds of the estate, it was not proper to charge the executor with the amount paid to Wing. The items of Crook and Meserve for tombstone, fifty dollars and expenses, $100, should have been disallowed upon the evidence before him. The case contains no evidence showing that they were paid by the executor. Vouchers for these items were not produced, nor was the evidence required by the Code given.

The surrogate unintentionally omitted in his decree for distribution the name of the appellant D. Burtqn Benedict.

In the early, part of the trial before the surrogate, it appeared that Harris S. Benedict left but four children. It subsequently appeared that he left five; the fifth one not first mentioned being H. Burton Benedict

The decree appealed from should be set aside, and the proceeding remitted to the surrogate’s court of Steuben county, to the end that the executor may furnish proof of the $50 and $100 items, and that the decree may be amended by providing that the amount to be distributed to the heirs of Harris S. Benedict be divided equally amongst his five heirs instead of four, as stated in the decree.

No costs of the appeal are allowed.

Dwight, P. J., and Macomber, J., concur;  