These provisions of the will gave to Mrs. Hooker as life tenant, while she remained the *Page 467 widow of the testator, the entire income of this trust estate, together with the right to use "in addition to the income, so much of the principal of said estate, as may be necessary for that purpose." She, by appointment of the Court of Probate, became the trustee of this life estate, and upon her resignation and the appointment and qualification of Mr. Frisbie he entered upon his duties as trustee possessed of all the powers devolved by the will upon Mrs. Hooker as such trustee.
The testator anticipated that there would be a remainder interest upon the decease or remarriage of his wife, and this he left to his children.
He placed a limitation or restriction upon her right to use the principal, and that was that such use must be necessary for the support of herself and children. The term "necessary," in a connection such as this, is a variable one, and restricted or enlarged by the surrounding circumstances. Applied to Mrs. Hooker, it meant all reasonable necessaries suitable to her situation and station in life, having especial reference to the fact that she would be the widow of Mr. Hooker.
Concerning the provision of a will, "Should it be necessary for their personal comfort to use any portion of said property," etc., we said: "The right to resort to the principal was founded on necessity and restricted by necessity," and meant, "as in the case of the obligation of a husband to furnish necessaries for his wife." Peckham v. Lego, 57 Conn. 553-556, 19 A. 392. In Hall v. Culver, 34 Conn. 403, 405, where a wife gave her husband a power of disposal "if he should want for his support to sell any part or the whole for his maintenance," we held that "the sale is to be proportioned to the extent of the necessity." In Little v. Geer, 69 Conn. 411,415, 37 A. 1056, the codicil gave to a wife "the privilege of using as much of the principal as she may desire for her comfort and maintenance," and the will *Page 468 gave the executors power to sell the estate and use the avails for the proper and comfortable maintenance and support of the wife in case the income "be insufficient for her comfortable and proper maintenance." We held that "the widow is confined to what she may require `for her comfortable and proper maintenance and support.'" In Russell v. Hartley, 83 Conn. 655,78 A. 320, the will provided: "And if in the judgment of said trustee she shall need more than the income thereof, then I authorize my said trustee to pay over to her from time to time such portion of the principal of said trust as he may deem necessary for her comfortable support." We held that the trustee's "authority to pay over the principal is limited by the purpose named, viz: `for her comfortable support.'" We further held that the widow might in her discretion appropriate so much of the income as was "reasonable for her support as stated in the will." And we had previously determined that reasonable support under those circumstances meant a maintenance in a manner suitable to her station and condition of life under the circumstances and situation presented in each case. We distinguished, in Reed v. Reed, 80 Conn. 401, 409, 68 A. 849, that case from Little v. Geer, 69 Conn. 411, 415, 37 A. 1056, and held that in the first case there was nothing in the will "to indicate an intention to limit the honest discretion of the widow in taking from the principal whatever she might think necessary for her comfortable support, or to evince solicitude that something should be left for his collateral relatives," while in the latter case the contrary appeared.
So long as Mrs. Hooker, as the life tenant, exercised a discretion within the law and confined her demand upon the principal to so much as might be necessary for the support of herself and her children, her discretion could not be interfered with. This discretion the testator *Page 469 gave her as the life tenant, and that disposition of the estate which he made will be the guide for the trustee, and for the court, when called upon to advise the trustee, or to pass upon his administration of the trust. And when Mrs. Hooker resigned as such trustee, her successor assumed the trust charged with the same duties and vested with the same power and discretion as his predecessor in the trust.
When a trustee vested with a discretion of this character is about to violate his trust, or has already done so, the law furnishes relief to the remainder interest. The trustee is, unless the will otherwise provides, under bonds (General Statutes, § 311) "to safely and properly keep such estate to be delivered to the person entitled to receive it on the determination of the life estate therein."
The trustee of Mr. Hooker is bound to account annually to the Court of Probate for his trust. So must every testamentary trustee unless excused by the will creating the trust. General Statutes, § 383. At the accounting, parties in interest may question any item of the account and the court must determine which payments from the principal, if any, shall be allowed, and which disallowed; and its decision must conform to the rule long since adopted by us as to what will be necessary support for the widow and her children in the light of the circumstances present. We pointed out another remedy for the remainderman in Little v. Geer,69 Conn. 411, 415 (37 A. 1056): "So long," said ANDREWS, C. J., "as the widow conducts reasonably and in good faith, the amount she may appropriate for her own support must be left to her own discretion. If, however, she should indulge in wastefulness, or should seek to appropriate to her own use more of the estate than is reasonable for her support as stated in the will, then she may be restrained by a court of equity *Page 470 on the complaint of any of the remaindermen." Russell v. Hartley, 83 Conn. 655, 78 A. 320.
It follows from what has been said that the conclusion of the trial court, that Mrs. Hooker is the sole judge of what is a sufficient support for herself and children, and its holding that the existence of a finding of necessity to authorize the use of any of the principal for the life tenant's support was not required by the will, were erroneous. But that the conclusion of the trial court that so long as Mrs. Hooker exercises a sound and honest discretion in her demand upon the principal for the support of herself and children the court could not deprive her of that discretionary power, was correct, if the support was confined to that which was reasonably necessary for her station and condition of life. So too, the court was correct in ruling that Mrs. Hooker retained her discretionary power after her resignation. And it was correct in determining that the use of the principal by Mrs. Hooker was not conditioned upon proof that the income was insufficient for her support.
The trustee of the life estate was bound to pay over to Mrs. Hooker upon her application such part of the principal as was necessary to furnish her reasonable and comfortable support. He was not required to await an order of court, otherwise the very purpose of the testator might have been defeated and his widow been deprived of the continued support from all of his estate if its use became necessary during the pendency of the court application.
The trustee took the precaution to apply to the court for authority to comply with Mrs. Hooker's request for a payment of $1,000 from the principal. The Superior Court has, on this appeal from the Court of Probate, rendered its judgment authorizing this payment; and we are now called upon to determine whether such payment, or any part of it, was necessary for Mrs. *Page 471 Hooker's comfortable support, judging this by her station and condition in life.
The life tenant is bound to maintain the real estate, including the buildings, in a reasonable condition. The repairs of the barn, so far as the finding shows, come under this head, that of ordinary repairs, and their cost cannot be met by payment from the principal.
The bathroom will be a permanent addition to the house, and it would appear to be a reasonable expense for the trustee himself to incur out of the principal.
Upon the finding, the income from the estate has not been sufficient for Mrs. Hooker's support for the past two years, and she was at the time of her application in debt for necessaries to the amount of $850. Mrs. Hooker has not lived extravagantly or wastefully, but prudently and with reasonable economy. She is under medical care, and under the circumstances as detailed in the finding we think the trial court was correct in its conclusion that "the application of said Anna N. Hooker for $1,000 from the principal fund of said estate was made in good faith and is a reasonable request in view of all the circumstances and was within her discretion as life tenant."
There is no error.
In this opinion the other judges concurred.