Estate of Stewart — 15 N.Y. St. Rep. 420

Majority

p. 420

In the estate of Theodore Stewart, deceased.

(Surrogate’s Court, New York County,

Filed October 14, 1887.)

Headnote

Will—Construction of.

The testator’s will provided: “I direct my executors to pay the Hudson River State Asylum its charges for the care and support of my unfortunate brother * * * during the remainder of his natural life, and I make this expense a charge on my residuary personal estate.” Held, that it was the intention of the testator that “his unfortunate brother” should be cared for and supported throughout his ufe out of testator’s residuary estate. That the said asylum should furnish such care as long as it would and should receive from the executors a reasonable compensation therefor. If at any time said asylum shall cease to exist, or shall be unable or unwilling to furnish such care and support, it would be the duty of. the executors to apply to the court for direction in the premises.

Louis M. Doscher, proctor for executor; Franklin A. Stewart and Percy McElrath, special guardians for Theodore Stewart.

I am asked to construe the fourth article of this testator’s will, which is as follows:

“I direct my executors to pay the Hudson River State Asylum its charges for the care and support of my unfortunate .brother, Franklin Augustus Stewart, during the remainder of his natural life, and I make this expense a charge on my residuary personal estate. ”

From the foregoing provision, and such extrinsic evidence as has been submitted, I find that it was the intention of the testator that his “unfortunate brother” Franklin should be cared for and supported throughout his life, out of his (the testator’s) residuary estate; that such care and support should be furnished by the Hudson River State Asylum so long as such asylum should be able and willing to furnish the same, and that such asylum should receive from the executors a reasonable compensation therefor. I find also, that if at any time hereafter said asylum shall cease to exist or shall be unable or unwilling to furnish such care and support, it will become the duty of the said executors to apply to a competent court for direction in the premises.