In re the Will of Woollard

Brewster, J.

(dissenting in part): I concur in Presiding Justice Hill’s opinion for reversal except as to that part thereof which countenances a construction of the proposed provision in question as constituting “an absolute gift of [for] support and maintenance and not a gift of income with direction that principal may be used in case of need." In my view of the provision in question the testator intended to constitute his wife the sole judge of the amount of the corpus of the estate which might become necessary for her maintenance, comfort and well-being and that as to the expenditure of the amount of corpus so deemed by her to be necessary, she was absolved from an accounting. However, testator did not by so constituting her the sole judge of the matters aforesaid, intend to give her an unlimited power to destroy the trust, but *870rather he intended that she would judge of the matters fairly and in good faith and with a due consideration of her existing means for support which he, the testator, had otherwise provided for her including the proceeds of life insurance. In the event of a disagreement between the life beneficiary of the trust and the remaindermen as a result of the former’s judgment, in the- light of the circumstances and upon the considerations aforesaid, then an issue would be presented for judicial determination.

Heffernan, Foster and Lawrence, JJ., concur in decision; Hill, P. J., dissents in opinion in which Brewster, J., concurs with the modification contained in a memorandum.

Decree affirmed, with costs to respondent payable out of the estate.