Maxwell v. Hoge

¶1We think the proper construction of the will of Margaret J. Maurice, deceased, is that it gave to her incompetent sister, Sarah, as much of the income as was “ required or necessary ” for her “ proper care, comfort, maintenance and support.” That amount did not rest in the uncontrolled' discretion of the trustees, but was capable of judicial aseer-, tainment, and the amount was determined by the order of the court in the ineompeteney proceedings to be $300 per month. It follows that under all the circumstances the will must be construed as devoting to the use of the beneficiary, Sarah, the income of the estate up to $300 per month. (Rudland v. Croizier, 2 DeGex & Jones, 143; Forman v. Whitney, 2 Abb. Ct. App. Dec. 163.) But whatever rights either plaintiff or the administratrix of the estate of Sarah E. Maurice might draw from this construction of the will are lost by the adjudication of the Surrogate’s Court on the accounting of the executors of Margaret J. Maurice, deceased, and of the Supreme Court, in Hoge v. Babcock. Judgment affirmed, with costs. Jenks, P. J., Mills, Rich, Putnam and Blaekmar, JJ., concurred.