In re the Will of Briggs — 223 N.Y. 677

Majority

p. 677

In the Matter of the Will of Alice H. Briggs, Deceased. John L. Briggs et al., Appellants; Edward D. Eddy, as Executor of and Trustee under the will of Alice H. Briggs, Deceased, et al., Respondents.

Headnote

Matter of JSriggs (Will), 180 App. Div. 752 , modified.

(Argued April 24, 1918;

decided May 14, 1918.)

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 4, 1918, which modified and affirmed as modified a decree of the Saratoga County Surrogate’s Court construing the will of Alice H. Briggs, deceased. Testatrix, by her will, erected a trust for the benefit of her husband with remainder to certain named beneficiaries. By a separate clause of her will she provided: “ I further direct that he (her husband) use during his life as much

p. 678

of the principal of my estate as in his judgment is necessary and proper and that he in no way be held liable or accountable for such principal so used.” The surrogate in construing the will held that under the provision aforesaid, the husband has the right to use and consume so much of the principal of said estate as he may in the exercise of his best judgment, in good faith, determine to be necessary and proper under all the circumstances; that said power of disposition is not absolute, but must be exercised by him during his lifetime, fairly, honestly and in good faith, and for his own use and benefit, arid in such -a manner as not in bad faith to divert the principal of said estate or portions thereof from the beneficiaries named in said will. The Appellate Division modified the decree by further restricting the husband in his use of the principal.

Edgar T. Brackett for John L. Briggs, appellant.

Charles L. • Hoey and Walter P. Butler for Saratoga Hospital et al., appellants.

Edward D. Eddy for executor and trustee, respondent.

Harold C. Beatty for John F. Durston et al., respondents.

John A. Slade for Mohawk and Hudson River.Humane Society et al., respondents.

George S. Van Schaick for Louise A. Parsons, respondent.

Harry P. Pendrick for First Baptist Church, respondent.

Corliss Sheldon for Mary L. Edwards, respondent.

Order of Appellate Division modified by striking out the modification of the decree of the surrogate and as so modified affirmed, with costs to appellant Briggs and one bill of costs to respondents, all payable out of the estate; no opinion.

Concur: His cock, Ch. J., Chase, Collin, Cuddeback, Cardozo and McLaughlin, JJ. Not voting: Hogan, J.