Majority
p. 608(22 Misc. Rep. 564.) BLAUVELT v. GALLAGHER et al. (Supreme Court, Special Term, Kings County. February 23, 1898.)
Headnote
Wills—Nature of Estate.Where the entire estate is devised to the wife “for the support of her and fay children while she lives and remains unmarried, and at her death to leave the residue to my children as she deems proper,” she is entitled to consume the principal by selling or mortgaging during widowhood.
Action by Clara Blauvelt against Elizabeth Gallagher and others to foreclose a mortgage. Motion to compel a purchaser to take title under foreclosure sale. The mortgage was made by Elizabeth Gallagher, widow of Charles Gallagher, deceased. By his will he left his entire estate to his wife “for the support of her and my children while she lives and remains unmarried, and at her death to leave the residue to my children as she deems proper.”
Granted.
p. 609
Alfred R. Page, for the motion.
Parsons, Shepard & Ogden, opposed.
The wife is given the entire estate while she “lives and remains unmarried,” to support herself and the children, and at 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 , 38 N. E. 726 ; Rose v. Hatch, 125 N. Y. 428 , 26 N. E. 467 . This mortgage having been made lay her during widowhood, it therefore covered the fee. ■
Motion granted.
Cases cited
- Swarthout v. Ranier 143 N. Y. 499 p. 609