In re Lowery's Estate

The testator, James L. Lowery, in and by his will, appointed his wife (Emily Gale Lowery), Clifford F. William L. Downing executors. At the death of his wife said Mark-love and Downing receive the corpus of the estate, as trustees, to dispose of the same as directed in said will. The question here to be determined is in reference to the disposition of the corpus of the estate during the life of Mrs. Lowery. The portion of the third clause of said will which is to be construed is as follows: .

“I do hereby give, bequeath, and devise unto my wife, Mrs. Emily Gale Lowery, for and during her natural life, the possession, management, and the control, and the rents, profits, use, and income, of all the rest, residue, and remainder of all my personal and real property, and proceeds of real property, if sold, of every name and nature, and wheresoever situated, which I may own at the date of my death.”

The primary object to be arrived at in the construction of all wills is the intent of the testator. There can be no doubt but that he intended to vest the possession, management, and control of the principal, unreservedly, in his wife. She is a life legatee. The right of remainder-men, however, should always be considered, when a fund is to be transferred to such legatee. Such a disposition cannot be demanded as a matter of right, but should be asked as a favor, which a court of equity may grant, by the imposing of such terms as may be just and equitable. In re Shipman, 53 Hun, 511 , 6 N. Y. Supp. 276 ; In re Gillespie, 18 Abb. N. C. 41 ; Tyson v. Blake, 22 N. Y. 558 ; Livingston v. Murray, 68 N. Y. 485 . In the present case there are seven children who will be entitled to the fund at a future time, and I believe it my duty, for their protection, and in accordance with our adjudicated cases, to exact a bond before the principal is delivered to the life legatee. In case the life legatee does not furnish the requisite bond, it is the duty of the executors to retain the corpus of the estate, and pay the income to the proper person, as provided in said will. In re Gillespie, supra; Clark v. Clark, 8 Paige, 152. The fact that the life legatee in the present case is one of the executors does not require from said executor any security or bond. In one case, as life legatee, she would take the fund by favor. As executor, she asks no right of the court, the confidence being placed in her by the testator. As executors, "they are to administer the estate in such a manner as the law directs. They cannot be called upon to furnish bonds, except for reasons specified in section 2638 of the Code of Civil Procedure.

A decree may therefore be entered directing the delivery of the corpus of said estate to Emily Gale Lowery, to be administered by her as provided in said will, upon her giving a bond, in an amount to be approved by the court, within 15 days from the date of the entry of the decree, or, in case of her noncompliance as to said bond, said corpus is to remain in the hands of the executors of the estate, and they are to administer the same according to the terms of said will. Decreed accordingly.