Judgment affirmed on the opinion of Spring-, J., delivered at Special Term, with costs against the appellant personally.
All concurred.
The following is the opinion of Spuing, J.:
Spuing, J..:Daniel Hazen was the owner of a small farm in the town of Mina, in the county of Chautauqua. He died in 1887, leaving the defendant, who had been his life companion for nearly fifty years, and no descendants. He made his will, which was admitted to probate, and the plaintiff, who was a neighbor of the testator, and the defendant were named as executors. The plaintiff assumed to have a right to the immediate occupancy of this little farm and promptly took possession of it, exercising control over it to the exclusion of defendant. That continued for the period' of six years, when the defendant succeeded in acquiring control of the farm, and plaintiff brought this action for the purpose of obtaining a judicial construction of the will, and in assertion of his right to the possession and control of the real estate of which the decedent died seized. The will *27does not vest in him any title to the farm during the lifetime of the widow. The devise to him is explicitly limited to such part as may remain after her death. No authority whatever is vested in the executors, so that plaintiff cannot maintain his action on the assumption of the creation of a trust. While no specific words, as contended for by plaintiff’s counsel, are essential to create a trust, yet the intention of the testator to vest the title to a farm must clearly appear in the instrument, and there is no language in this will from which such a construction can be spelled out. It was the obvious intention of the testator to make a suitable provision for his widow so far as his small estate would permit, and he did this first by the bequest of his few dollars of personal estate, and then by permitting her “ to draw from the real estate,” if necessary for her comfort.
She is the one to determine that necessity. (Matter of Grant, 40 N. Y. St. Repr. 944; Smith v. Van Ostrand, 64 N. Y. 278.)
That the necessity exists in this case is quite apparent. She has no other property, is in the decline of life, and certainly should have whatever property a fair construction of her husband’s will accords to her.
The complaint must be dismissed, with costs against the executor personally, as the small patrimony should not be depleted further to aid the plaintiff in his attempt to wrest it from the defendant.