The action is based on a provision of the will of Samuel Grlatner, who was plaintiff’s father and died January 6, 1910. It was duly admitted to probate in the county of New York on the 1st day of February, 1910. The testator after providing for the payment of his debts and funeral expenses gave a legacy of $500 to his sister-in-law and to her children if she should not be living. He then gave a legacy of $1,000 to the plaintiff, and in connection therewith he stated in his will as follows: “As she is not married and is dependent on me, I desire to make separate provision for her. ” He then gave a legacy of $500 to his son Harry, and stated in the will that he desired to provide separately for this son on account of poor .health. He then devised to two other daughters real estate in Nebraska in trust for his grandchildren therein named until one of them* attains the age of twenty-one years, when the title was to vest in possession in the grandchildren. The testator’s household furnishings and furniture and personal effects were then given to his wife.- The 1th clause of the will came next and is as follows:
“All the rest, residue and remainder of my estate, both real and personal, of whatsoever nature and kind and wheresoever situate, including moneys in bank and mortgages, I give, devise and bequeath to my beloved wife Caroline, to have and to hold during the term of her natural life, and to have the-entire income therefrom, subject however to my said wife giving a home to my daughter Rachel, so long as my said daughter desires to remain at home, and also to provide a home as best as she can for my son Harry, if he needs it. If my said wife should remarry or go abroad to live, then and in that event the said estate shall be divided between her and my children, one-third part thereof to go to my said wife absolutely, and two-third parts thereof to be divided equally among my children, Harry, Ida, Carrie C., Flora, Rachel, Jennie and Nathan, share and share alike, the child or children of any deceased child to take its oi their parent’s share.”
The testator then devised and bequeathed the reversion or remainder of his residuary estate from and after the death of his wife to his children, share and share alike, with the provi ■ *93sion that the children of any deceased child should take their parent’s share. The defendant is the widow of the testator and the stepmother of the plaintiff. 1 At the time of the testator’s death the plaintiff resided with her father and stepmother in an apartment at No. 162 West One Hundred and Forty-fourth street, and she was furnished a home there by the defendant until December 1, 1910, when the defendant abandoned the apartment on the ground that she could not afford to maintain it and rented a single room for herself, having previously notified the plaintiff that she would be unable longer to provide a home for her. The evidence is conflicting as to whether plaintiff insisted that she was entitled to a home with defendant or left voluntarily. The only property received by the defendant under the devise in the 7th clause of the will was the fee of premises known as Nos. 436-438 East Houston street, borough of Manhattan, New York. The defendant took possession of these premises and collected the rents thereof.
On this evidence the court found that defendant accepted the devise of the real estate on the conditions imposed, and became obligated thereby to provide a home for the plaintiff until such time as the defendant should remarry or go abroad to live, and that having failed and refused to provide a home for the plaintiff, she became obligated to pay the plaintiff the expense of furnishing a home for herself, which the court found to be eight dollars per week, and gave judgment in favor of the plaintiff for the amount due on that theory, and further adjudged that defendant pay the plaintiff the sum of eight dollar's per week thereafter in monthly installments until the death of the plaintiff, or until the defendant should remarry or go abroad to live. Proof was made with respect to the rentals received by the defendant from the premises tending to show the net amount; but it was quite indefinite, and no finding was made thereon by the court, and the judgment was not granted on the theory that the net rentals were sufficient to enable defendant to provide a home for plaintiff.
I am of opinion that the construction placed upon the will by the trial court is erroneous, and that the defendant only became obligated to furnish a home for the plaintiff from the income derived from the property which she received under *94that clause of the will. It was undoubtedly the duty of the defendant on accepting the devise first to provide from the income thereof a home for the plaintiff. The defendant was to have for her own use and enjoyment the remainder of the income subject to the further obligation to provide a home, if the income would permit of her so doing, for the testator’s son Harry, should he need it. This tends to show that the testator realized that the income might be insufficient to provide a suitable home for all of them, and so far as he imposed upon his wife a condition to provide a home for his daughter and son, it was to be from the income of the property which she received under that bequest and devise. It is difficult to discern any theory upon which a court of equity can enforce a compliance with the defendant’s ohhgation, and I am of opinion that the plaintiff’s only remedy is an action at law from time to time on proof that there is, or should be by proper management, net income from the property with which the defendant could perform her obligation.
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., concurred.
Judgment affirmed, with costs.