
    Harriet A. Linzy, Appellant, v. Leonard Whitney and Others, Respondents.
    Fourth Department,
    January 3, 1906.
    Will construed — devise of life interest to wife if. she remain unmarried-direction to divide estate on remarriage of wife — estate charged' , with support of mother — accounting by widow on remarriage.
    A will bequeathed the personal property to the widow subject to the payment of debts and the expense of building a monument worth §1,000, and devised a life use of the real estate to the testator’s wife; .remainder to his children, if any, and if he died without children, then one-third to the wife, remaining two-thirds to others named; “subject however to the foregoing expenses and the life estate.” In case the wife remarried, the will required her to sell the lands “ and aft'er paying all the payments and satisfying all the provisions hereinbefore made, to divide the remainder of the proceeds among and pay the ■ same to herself the one-third,, and the other two-thirds equally ” to persons named. . . .•
    The testator, died without children and the Widow remarried.
    
      Held, that as a sale was ordered on the widow’s remarriage, with a, gift of one-third of the proceeds, it was incompatible with the life estate devise if she remained unmarried.
    The will provided for a home for testator’s mother as long as she should live “ provided she accepts the same at the'house on my farm, but in case she resides or stays elsewhere * * * she is not entitled to any support.” The widow was directed to furnish the mother with such home; The house burned, and the mother, went to live with another son.
    
      Held, that hoard for the mother at five dollars per week should he charged against the proceeds" of a sale of the lands and that said proceeds should he, invested by the county treasurer to meet such continuing expense;
    That the widow was hot entitled to compensation for caring' for the mother;
    That, as the will provided for the .sale, of portions of the land, if necessary to build the §1,000 monument, the proceeds of a sale of timber by the wife must be accounted for by her, as she had no righi to sell the same as life tenant, but only to build the monument;
    That, though the wife had insured the whole property in her own name and paid the premiums, such insurance was taken for the benefit of the whole estate, for, as life tenant, she was hound to insure, a>\d the policy, by its terms, wasy not an insurance of "her life interest only.
    Appeal by the plaintiff, Harriet A. Linzy, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Livingston on the 4th day of April, 1904, upon the decision of the court rendered after a trial at the Livingston Special Term.
    
      Myron N. Tompkins, for the appellant.
    
      William Carter, for the respondents Leonard Whitney and Franklin Hagerman.
    
      Kidder M. Scott, for the respondent Mary E. Whitney.
   Spring, J.:

The action is partition, commenced by the widow of Charles S. Whitney, who died March 9, 1899, leaving a last will and testament, the construction of which is involved. The testator left no children, but the plaintiff, his widow, who has since remarried, and his mother, who was living with him at the time of his death.

Beferring to the provisions of the will pertinent to the pending controversy, we find that the' personal property was bequeathed to his widow subject to the payment of debts, expenses and the expenditure of $1,000 for a monument. Testator also devised to Bis wife the life use of ttie real estate of which he died seized, and which consisted of a farm, and then to his children, if any. He devised one-third of the land of which he died seized, in case he died without any children, to his wife, and the remaining two-thirds to others named in the will, “ subject, however, to the foregoing expenses and the life estate.” This item continues as follows: But in case my wife, Harriet, shall again marry, then and in that event I authorize and direct her as the executrix hereof to sell all the land and convey the same to the proper purchasers by proper deeds, to be executed by her as such executrix, and after paying all the payments and satisfying all the provisions hereinbefore made, to divide the remainder of the proceeds among and pay the same to herself the one-third, and the other two-thirds equally to' said Leonard, Talmage and Franklin as above provided.”

There was a mortgage on the farm of $1,300, which the testator made chargeable one-third on that portion devised to my wife and the other two-thirds ” upon the balance of said premises.

The plaintiff has commenced her action upon the assumption and now contends that she became vested with the life estate, notwithstanding her marriage,, and that the division of the avails of the sale- or 'of the premises, if unsold, was not.to be made until after her death. We concur with the learned court below that tins-construction was not intended by the testator. .'Laying aside the.. ' question, of Ms children he had two considerations in view when providing for his wife’s portion of the real estate. If she remained' his widow she was to have the exclusive useibf the premises and one-third, in fee; In the-8th paragraph.of his will he had in mind the-possibility of her remarriage, and in that event he directed an immediate sale of the farm and the disposition of its proceeds. He still, adhered to the. one-third to his widow, but the fact that lie ordered a sale by the executrix in the event of her remarriage is incompatible with the retention of -the life estate by her.

He made no provision for the investment of the avails.of the sale for her benefit, but imperatively required her to.' make the division provided for. The división is to be made “ after paying all the payments and satisfying all the provisions • hereinbefore made,” and: it is- strenuously urged that the life estate is one of the provisions to which the clause has reference. . The language is sufficiently comprehensive to; include the life estate but there are other provisions to which concededly it relates. In construing the will we must keep in mind the purpose of the testator that he intended a different distribution of his estate in case Ms widow remarried. He then provided for an equitable conversion of bis land into money and its'distribution, and this scheme is repugnant to the life estate provision, which was to be effective as long as the plaintiff remained his widow. •

The mother of the testator resided with the-plaintiff on the farm, as she had done before his. death, until the dwelling house thereon burned. Since that time she hás lived with anothér son, and the proof shows the board and care furnished by this son are worth five dollars a week, and c'ompensation. for that sum has been awarded in the judgment, and the net avails of the.sale are directed to be invested by the county treasurer, primarily to meet the continued expense of caring for her at that "rate;. By . the 4th paragraph of’ the will the testator provided a home for his mother ás -long -as she lived, “ provided she accepts the same at the house on my farm, but in case she resides or stays elsewhere than at the house where I . shall live up to the time of mv death, then she is not entitled to any support or maintenance from my estate,” and he further directed the executrix to furnish her “ with-a home at the house which shall lie my residence at the time of my death, consisting of board, rooms, lodging and proper care.” This provision for his mother was made by the testator in anticipation of the wúdowhóod of the plaintiff continuing, and upon the assumption, therefore, that the farm was to remain unsold and the fruits inure to the plaintiff. The dwelling house, as noted, burned in February, 1901, and an entirely different situation was presented from that contemplated by the testator. The widow, after a few days, remarried, but continued to occupy and receive the avails of the farm. The husband erected a small temporary house'on posts on the farm in which'he and the plaintiff resided until the November following. The plaintiff since the tire has not manifested any desire-to take care of the mother of the testator, and has made no effort to do so. The intention of the testator cannot be carried out literally, but the judgment does make effective the essence of that intention by providing for .the maintenance of the mother,, who was ninety-two years of age at the time of the trial, out of the entire net proceeds of the sale. This direction only imposes the aliquot part of the burden upon the plaintiff, and is as fair a distribution as can be made, arid reasonably carries out the purpose of the testator to provide for her support out of his estate. It does no injustice to the plaintiff, for if she had not remarried the burden would probably have been borne by her in connection with the life tenancy. Nor is the plaintiff entitled to compensation for maintaining and caring for her mother-in-law up to the time of the fire. It is clear that the testator expected that this was one of the incumbrances attached to the life use of the farm.

It is also urged that the support of the mother is not made a charge upon the real estate. The direction to sell the farm and distribute the avails has coupled with it not only,the payment of the sums provided for in the will, but the satisfaction of “all the provisions hereinbefore made,” and only the remainder of the proceeds ” was to be divided.

The testator in this part of his will had in view the farm when converted into money, and the obligations he made a charge upon his property were intended to be'taken care of out of these avails. This suggestion disposes also of the payment of $100 for the burial expenses of Ezra Whitney, a brother of the testator,, and which is also provided , for in'the judgment. - '

The testator by the 2d paragraph of his will directed the payment of $1,000 for a monument to his parents, his debts and expenses out of his personal estate • primarily, but charged the payment thereof upon his real estate, in case the personal property was insufficient therefor; and he authorized the executrix “ for that purpose * ■* * to sell at public or private sale such parts of my real estate > or standing trees or timber as may -be sufficient therefor, leaving to the good judgment of my executrix what portions of land or timber, either or both, to sell.” The plaintiff caused growing .trees on the farm to be cut and manufactured into lumber, realizing therefrom $279, which she used and has not accounted for. Upon thé judicial settlement of her account, it appeared she had overpaid $63.44 as executrix and that sum comprised the only inadequacy of, assets in the administration of the estate; ■ The judgment requires her to account for the sum so received, less the overpayment. As life tenant she had no authority to cut the standing timber and by-so doing she committed waste. As executrix her authority was definitely limited by the will to cutting and selling timber to meet the expenses and debts. Within the narrow compass, her power was plenary, but when she undertook to cut standing timber for her own benefit; she was beyond the scope of her authority. Neither as executrix, nor life tenant was she entitled to cut this timber and use the avails individually. . . ■ • ■ '

At the death of the testator the. dwelling house and contents were • not insured. On the 5th day of May, 1899,. the plaintiff caused the dwelling house to be insured for $1,200, and the contents, barn and other property for $1,300, all in one policy for $2,500. ' The policy Was made payable to the plaintiff individually, containing .a clause, however, “in case of loss payable to Josephine D. Blake, mortgagee, as her interests may appear.” The mortgage referred to was an existing incumbrance' Upon the farm' at the time of the death of- Mr. Whitney. The plaintiff personally paid the premium on this, policy. The will Was proved on the 27th day of May, 1899. The dwelling house burned in February, 1901. The $1,200 insurance thereon were paid to the plaintiff and she claims the money belonged to her individually. At the time of .its payment her husband owned the Blalce mortgage and consented to the payment of the avails to her. Her contention is that when the policy was issued she was not then executrix or trustee, as the will had not been admitted to probate and she simply insured her own interest. If her somewhat strained position is correct, she had no interest for her. life tenancy and her title to the undivided one-third depended upon the will. However, when the will was proved it was operative from the death of the testator, and her transactions in connection with the management 'of this property must be" construed in the light of that fact. As life tenant the duty was upon her to-insure and protect the property. Whatever she did for its preserva- • tion or permanent benefit must be assumed to have'been done either as trustee of the property or as life tenant for the benefit of the remaindermen as well as herself, unless the contrary clearly appears. Of course, she could insure her own, interest independently of the other interests. But she did not do that. The policy does not purport to relate solely to her own title, but is general in form, covering the property as a whole, the same as if she was vested with the entire ownership.

Another significant answer to her contention is the clause making the loss, if any, payable to the mortgagee. If she individually was taking out this-insurance she would not be providing for the payment of a general lien on the property in case of loss. The judgment directs her to account for this money, less the insurance premiums she paid, as part of the general estate committed tó her, and we are satisfied that the direction is just.

• The other criticisms upon the judgment discussed in the brief of tile appellant require no especial comment.

The judgment-should be affirmed, with costs._

All concurred, except Hash, J., not sitting.

Judgment affirmed, with costs.  