[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 21 It cannot be denied that the will above quoted imposes duties on the executrix and expressly confers authority upon her, by the exercise of which those duties may be performed. She has first to pay the debts and funeral expenses; she is then given during life or until she remarries, the entire estate of every description for her own use, and upon either of those events happening, the residue and remainder of the estate goes to the children, but she is "authorized and empowered to make such advances out of" that residue to any or either of the children, as she shall, in her discretion, deem best, for their maintenance and support.
The respondent contends, and such seems to be the opinion of the court below, that such advances could be made only out of thecorpus of the estate "while the wife was entitled to its use and before the children became absolutely entitled to it by the remarriage or death of the wife." In view of the situation of the parties this seems an unreasonable limitation. The children were young, without other means of support, and their necessities might continue after the death or remarriage *Page 23 of their mother. The authority to make advances was evidently designed to cover the period of infancy, and the words should not be construed in a technical sense. She was their guardian and directed to provide for their maintenance and support, and that provision was to be in "her discretion." There is then a provision that the amount of these advancements shall be charged to "and deducted from the share or shares of any such child or children upon the final division of said rest, residue and remainder." There has been no such division. Nor does it appear that other property came to the hands of the executrix, from which such advances could be made. Then follows an authority to the executrix to mortgage, lease, dispose of and convey the whole of the testator's property according to her discretion and as she shall deem best for the purposes of carrying "into effect the provisions of the will." It would seem apparent, therefore, that the scheme of the testator required the executrix to collect the rents, convert the land, receive its proceeds and apply them for the purposes of the will. Having that power and being charged with that duty, there is no reason why the disposition of the estate should not be made by the executrix after her remarriage as well as before.
In Kinnier v. Rogers (42 N.Y. 531), the language of the will was not unlike that before us. There the testator, after directing payment of his debts and making certain bequests, gave all the rest, residue and remainder of his estate, both real and personal "to his children." He named executors, authorized them to sell any part of his real estate at any time in their discretion, and execute valid deeds for the same to purchasers. It was held that he thereby invested his executors with a power in trust to convert the land into personal estate for convenience of distribution and thus avoid the expenses or delay of partition or other legal proceedings, and that the executors could convey good title. In the case before us the executrix is authorized to sell and convey the land. She is authorized to mortgage or lease it. She is empowered to invest and reinvest the proceeds, and to do all this as to her *Page 24 shall seem best for carrying out the provisions of the will. It does not appear that the mortgage was executed for any other purpose, nor if it were that the plaintiff is chargeable with knowledge thereof. There was therefore in the executrix a general power in trust (1 R.S. 732, § 77), and the children of the testator took an absolute fee in the land, subject to the execution of the power. (Kinnier v. Rogers, supra.)
Nor do we think the word "advances" was used in the technical and restricted sense applied to it by the learned counsel for the respondents. The meaning of the testator should be ascertained and the word defined in view of the object to be accomplished by expenditure of money, and in that light the amount expended "for the maintenance and support" of the children, or either of them, expresses the "advance" which the executrix is authorized to make, and whether those expenditures shall be made from income or taken from the widow's own property, to be afterwards repaid from rents or money obtained on mortgage or by sale cannot be material. All these means were by the broad language of the testator entrusted to her.
Notwithstanding this the answer of the defendants, if proven, would constitute a defense. They allege a right on the part of the executrix to make advances out of the estate for the maintenance and support of the children of the testator, and for no other purpose, and a right to mortgage the estate for such purpose, but declare that the plaintiff loaned the money mentioned in the complaint to the defendant Joseph B. Campbell for his sole use and benefit, to be used in his business as the said plaintiff was informed. The defense, however, was not established either by the findings of the court or the evidence. But the case turned upon a construction of the will which seems to us erroneous, and it may be that upon another trial the alleged facts will be shown.
The judgment so far as appealed from should be reversed and a new trial granted, with costs to abide the event.
All concur, except PECKHAM, J., not sitting.
Judgment reversed. *Page 25