The direction contained in the Surrogate's decree in this proceeding which this court is about to modify serves to enlarge to an unlimited right the interest of the decedent's widow in the residuary estate of her deceased husband. The decree and the modification by this court transcend those limits fixed by the decedent, whose will prescribes that the trustees shall pay to his widow monthly during her lifetime all the income from his residuary estate "* * * together with as much of the principal or corpus of my estate as she may deem necessary for her maintenance comfort and well being". Instead of giving his residuary estate outright to his widow the decedent chose to impress it with a trust. The broad provisions of that trust indicate the decedent's intent to make available to his widow something more than a life use of his residuary estate *Page 395 but something less than an absolute fee therein. He made provision for a remainder over — which cannot be limited upon an absolute estate in fee. (Matter of Ithaca Trust Co., 220 N.Y. 437,441.) When the decedent named his widow as the sole judge of the amount, if any, which should be withdrawn from the principal of the trust and paid to her as necessary for her maintenance, comfort and well-being during her lifetime, that grant of the use of principal with remainder over to their daughters and son-in-law imported his confidence in her and in turn called for the exercise by her of honest judgment and good faith which, when challenged, was the proper subject of judicial review. (Swarthout v. Ranier, 143 N.Y. 499, 504; Matter of Wilkin,183 N.Y. 104, 113; Matter of Briggs, 101 Misc. 191, 202, mod.180 App. Div. 752, affd. 223 N.Y. 677; Vincent v. Rix,248 N.Y. 76, 81-82; and see Matter of Smith, 129 Misc. 497, 499 and cases cited; 2 Scott on Trusts, § 187.4.)
Accordingly I dissent.
LOUGHRAN, Ch. J. CONWAY, DESMOND and THACHER, JJ., concur inPer Curiam opinion; LEWIS, J., dissents in opinion in which DYE, J., concurs.
Ordered accordingly.