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22 Misc. 564

Blauvelt v. Gallagher

New York Supreme Court

Decided February 15, 1898

New York Supreme Court · decided 1898-02-15

<p>Mortgages — Validity of mortgages,, given, by a life tenant, who had a right to use the principal of an estate.</p> <p>A bequest, by which a testator leaves his entire estate to his wife “ for the support of herself and my children while she lives and remains unmarried, and at her death to leave the residue' to niy (his) children as she deems proper”, gives her, during her widowhood, a life estate, with power' to use the principal, and hence-mortgages, given by her during that period, are a valid lien upon the real "estate of the testator.</p>

Relies on Rose v. . Hatch · Swarthout v. . Ranier

Decided 1898-02-15

Gaynor J.:

¶1The wife is given the entire estate while she “ lives and remains unmarried ”, to support herself and the children, and a.t her death to leave the “ residue ” to the children. • She is not given the fee; but this direction as to the residue makes clear her power to, consume the principal.. The meaning therefore is that ■ the estate is given to her for life, with power to consume the principal, but such estate and. power to cease upon her remarrying. Meanwhile, however, the power to consume continues, and under it she may mortgage or sell (Swarthout v. Ranier, 143 N. Y. 499; Rose v. Hatch, 125 N. Y. 428)., This mortgage having been made "by her during widowhood, it therefore covered the fee.

¶2Motion granted.

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