
    Allport v. Jerrett et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1891.)
    'Construction of Will—Support of Widow.
    A will, after making provisions for testator’s widow, directed: “And if from any cause the use of my said property shall prove insufficient for her support, then in such case I hereby direct my executors * * * to sell so much of my property as may be necessary for her support, to be used for her benefit. ” Held, that the expenses incurred during the last sickness of the widow, such as board, nursing, and physicians’ attendance, should be paid from testator’s estate, though not paid during the life-time of the widow.
    Appeal from judgment on report of referee.
    Action by Mary J. Allport, executrix of Mariah E. House, deceased, against Lewis D. Jerrett and Garrett S. Cole, executors of William C. House, deceased, and another. From a judgment for defendants, entered in Oswego county, -dismissing the complaint, plaintiff appeals.
    Plaintiff is executrix of the last will and testament of her mother, Mariah E. House. On January 24, 1885, William C. House, then a resident of New Haven, Oswego county, died, leaving him surviving his widow, Mariah E. House, then about 72 years of age, and his two daughters, the plaintiff herein and Augusta J. Cole, one of the defendants. The will of William 0. House was admitted to probate in Oswego county, and Jerrett and Cole were named as executors in the will, and as such are defendants in this action. At ihe time of the death of House he was seised and possessed of a farm of about 50 acres, worth in the neighborhood of $1,300. His widow remained thereon, occupying a portion of the house after his death, and was able to-rent the same to a tenant who would supply her with table board and pay her $25 a year, and who, after the executors caused a mortgage to be placed, upon the farm to pay the debts of the testator, amounting to the sum off $403.36, was induced also to pay the interest bn that mortgage, as a full consideration for the use of the real estate. Some two months before-her death Mariah E. House was taken ill, and remained seriously ill until her death, which occurred on the 22d day of May, 1889. During her last sickness she was boarded and cared for by the plaintiff, who furnished her various kinds of food, attended and nursed her, and boarded the other nurses who were employed; and two physicians were employed; and the-expenditures for the physicians, for the nurses, and for her care and board remained unpaid at the time of her death, the defendants having contributed nothing thereto or therefor. In the will of William C. House is found the following provision: “After all my lawful debts are paid and discharged, including my funeral expenses, and after my wife, Mariah E., shall have set off to her all she is legally entitled to by law to hold, I give and bequeath to my said wife, Mariah E. House, the use of all the residue and remainder of my property, real and personal, for her use and benefit, and the avails of the same, for and during her natural life, and if from any cause the use of said property shall prove insufficient for her support, then in such case I hereby direct my executors hereinafter nominated and appointed by me to sell and dispose of so -much of my property as may be necessary for her support, the avails of the property so sold to be used for her benefit. After the decease of my said wife I give and bequeath to my younger daughter, Augusta, now the wife of Garrett S. Cole, the residue and remainder of all. that may remain of my property, real and personal, to her and to her heirs and assigns forever, onthecondition, however, that she pay to my oldest daughter, Jennie M., now the wife of Smith Allport, the sum of $60 within six months-after the decease of my said wife. It may be for the interest of my said estate to sell and dispose of some or all of my property before the death of my said wile. If she should prefer to have it sold and use the interest of the-avails for her support, and others most interested should be of that opinion, then in that case I hereby authorize and empower my executor hereinafter appointed by me to sell and'dispose of all my property, either before or after~ the death of my said wife, and make and execute good and sufficient deed or-deeds to the purchaser or purchasers, as the case may be, as sufficient conveyance of the said property.” As conclusions of law the referee found “(1) that-the said last will of William C. House vests no estate in his said executors, but that said will created a power in trust to sell said real estate upon the happening of the contingency that any portion of the avails of the sameslumld become necessary, over and above the use and income of his said property, for the support of his said wife, Mariah E. House; (2) that it was the intention of the said testator, as expressed in his said last will, that such sale, if made at all, of his said real estate by his said executors for the support- and benefit of his said wife, should be made only in her life-time; (3) that by the terras of said will said real estate vested absolutely in said defendant-Augusta J. Cole immediately upon the death of the said widow, Mariah E. House, subject only to the payment of $60 to the plaintiff within six months after the decease of the said widow; (4) that said $60 was paid in accordance with tlie terms of said will within 60 days from the time of the decease off the said Mariah E. House; (5) that the use and income of the property left, at his death by said William C. House was sufficient for the support of said Mariah E. House except during her last sickness, when it was insufficient; (6) that the said Mariah E. House must be deemed to have acquiesced in the-non-execution of said power in trust to sell said real estate for her support. and benefit by said executors; (7) that the power in trust to the executors of the will of William C. House, given by his will, to sell his real estate for the support and benefit of his said wife, terminated with the death of his widow, Mariah E. House;” and then ordered the complaint dismissed, with costs.
    Argued before Harding, P. J., and Martin and Merwin, JJ.
    D. P. Morehouse, for appellant. W. H. Kenyon, for respondents.
   Hardin, P. J.

We think the language of the will of Mr. House clearly indicates that his intention was to give “the use of all the residue and remainder of my [his] property, real and personal, for her use and benefit, and the avails of the same for and during her natural life.” We think it was also his intention that, in the event of the avails or use being insufficient, her support should be and was made a charge upon the corpus of his estate. Such intention was clearly evidenced by the use of the following words, viz.: “And if from any cause the use of said property shall prove insufficient for her support, then in such case I hereby direct my executors hereinafter nominated and appointed by me to sell and dispose of so much of my property as may be necessary for her support, the avails of the property so sold to be' used for her benefit.” The language is so clear and explicit that 'no doubt can be entertained of the intent to charge her support upon the body of his estate in the event the use or income should be inadequate. This intent is made clear by the language subsequently used in the will, containing a devise to his daughter Augusta. The language is as follows: “After the decease of my said wife I give and bequeath to my younger daughter, Augusta, now the wife of Garrett ti. Cole, the residue and remainder of all that may remain of my property, real and personal, to her and to her heirs and assigns forever, on the condition, however, that she pay to my oldest daughter, Jennie M., now the wife of Smith Allport, the sum of $60 within six months after the decease of my said wife.” We think it is a mistake to suppose that he intended to give Augusta all his property “real and personal” on the condition that she pay $60; on the contrary, it was his intent to give only so much of his real and personal as should be “ the residue and remainder” after satisfying the support given to his widow and charged upon his real estate. The words, “all that may remain of my property, real and personal, ” clearly evince an intent that his daughter Augusta should only receive what remained after fully satisfying the requirements of the charge imposed upon his property in favor of his widow. In Shallcross v. Finden, 3 Ves. 738, it was held that a devise after payment of debts was equivalent to a charge of the debts. In Williams v. Chitty, 3 Ves. 545, it was held there is “no difference between debts and legacies in an implied charge upon real estate by will.” We are therefore of the opinion that the daughter Augusta received from her father the real estate charged with her mother’s support, and that such expenditures as were necessary for her support in equity should be declared a lien upon the real estate remaining unsold at the time of the death of the mother. There seems to have been a steady, if not studied, neglect, by the executors of Mr. House in carrying out the provisions of his will intended to provide a liberar support for his widow out of his estate. That neglect ought not to inure to the benefit of the devisee of the real estate, as she should only receive what remains after liquidating the necessary expenditures made in support of her mother beyond such sums as were received from the income of the estate. Smith v. Van Ostrand, 64 N. Y. 285. We think a court of equity has jurisdiction to enforce liquidation of such expenditures. In Lent v. Howard, 89 N. Y. 181, it was said: “Whatever view may be taken of the general jurisdiction of the courts of equity, in the absence of any statutory or legislative policy, to abrogate continual trusts, created for the purpose of providing a sure support for the willow or children of a testator or other beneficiary, the indestructibility of such trusts here by judicial decree results, we think, from the inalienable character impressed upon them by statute. ” Our attention is called to Thomas v. Pardee, 12 Hun, 151, by the respondent. The language used in the will in that case was different from the language in the will before us. We see nothing used in the language of the opinion that is adverse to the views which have already been expressed. In the course of the opinion in that case it was said: “The testator did not design to give his wife either the principal or interest as such, but whatever she needed for her comfort and support; she being the judge. She could take' out from the estate as a whole; but what she did not take out—what remained at her death—was to go to others.” In the case before us the personal estate of Mr. House was used up, and it clearly appears the income was inadequate for the support of his widow, and therefore the sum required for her support became an equitable charge upon the real estate. Will. Eq. Jur. p. 489. In Glenn v. Fisher, 6 Johns. Ch. 35, it was said: “He who accepts a benefit under a will must conform to all its provisions, and renounce every right inconsistent with them. This is an obvious and settled principle in equity. He accepts of the devise under the condition of conforming to the will, and a court of equity will compel him to perform the condition; for no man, says Chief Baron Eyre, (Blake v. Bunbury, 1 Ves. Jr. 523,) shall be allowed to disappoint a will under which he takes a benefit.” See, also, Birdsall v. Hewlett, 1 Paige, 33. In Thurber v. Chambers, 66 N. Y. 42, Chief Judge Church ob-served: “It is a general rule that provisions in a will intended for the support of a wife will receive the most favorable construction to accomplish the purpose intended,” and that observation was approved in Stimson v. Vroman, 99 N. Y. 80, 1 N. E. Rep. 147. We think the learned referee fell into an error in supposing that, because the expenditures for her support were not •actually paid by the executors of her deceased husband in her life-time, they could not be enforced upon property left by the testator charged witli her ■support. Such expenditures may be ascertained in this action, and declared a charge upon the real estate devised to the daughter Augusta, and, if she •shall not pay the same within a specified time, the real estate, or so much •thereof as shall be necessary, may be sold under the direction of this court, .and the funds realized from the sale used to liquidate such expenditures. We think the judgment should be reversed. Judgment reversed, and a new trial ordered before another referee, with costs to abide the event. ‘ All ■concur.  