By the Court,
Foster, J.The claim of the appellant has no meritorious foundation, and if sustained at all, it must be because the law, under the circumstances of the case, will award it to her, against good conscience and to the manifest injury of one who has done not only the best that he could to carry out the intentions of the testator, but evidently the best that could be done, for the welfare of the other members of the family of the testator, and of the appellant also.
It is conceded that all the expenditures of the executor, as well for the family as for herself, were necessary to their support, and were all proper and reasonable in kind and cost. And what she claims is, that after exhausting in her support, and in the specific payments to her, specified in schedule E, nearly or quite all of the $800, which was her share of the $3200 bequeathed in the fourth item of the will, the executor shall, from his individual means, pay her the whole sum of $800. She admits the kindness of the executor towards all the members of the family, including herself. She does not question his motives; she does not deny that he has honestly expended upon her the most if not all of her share; or that such expenditure has been made for her comfort; or that she has been benefited to the extent of the last dollar which he has so dispensed. *512But she claims that the law gives it to her over again, and that therefore she will have it. If the law clearly gives it to her, she must have it, for it is our duty to do what the law requires, though in a given case it may work injustice between the parties.
It seems from the terms of the will, that in some way the testator was a trustee for his children, including the appellant, of a sum of $3200. ' Whether it was a trust in real or personal estate, or what were the terms of the trust, we are not informed. We are led from the statement of the will to infer that the trust fund, at least before the execution of the will, had been mingled with his own estate. And it is claimed that the respondent has become the trustee of the legatees named in the fourth item of the will, and that as their trustee, he had no right to trench upon the fund, even to supply them with necessaries, until so ordered to do by the court.
In my view of this case it is not necessary to ascertain definitely what a trustee may or may not do, without the order of the court, for the benefit of the trust estate, or to provide for the support of the cestui que trust. For I am not aware, if this $3200 was clearly a trust fund, in the hands of the testator, and that he was clearly a trustee for the legatees therefor, that he could continue that trust after his death, by his last will and testament, whether the trust in his hands were of real or of persónal estate. It is a well settled rule, that when the sole trustee, or the survivor of several trustees dies, the trust cannot by any act of his, be continued in another person.
Nor is there anything in the fourth item of the will which makes that sum of $3200 a debt against the estate, in the ordinary acceptation of that term. All we know of it is what the will discloses, and whether it was a legal claim in their behalf, as against the testator, does not appear. It only appears that he meant to provide for it in *513Ms will, and I tMnk he has made such provision in the form of a legacy.
It is true that though the testator could not continue the trust, whatever it was, in his executor, yet if it was a debt against him, the executor would of course be bound to pay it out of the assets, if they were sufficient for that purpose. But it has not been treated as a debt by either party to this controversy, but is claimed on the part of the appellant, either as a trust fund, or as a legacy; and I think it is 'clearly the latter. And the argument of the appellant’s counsel seems to concede, that if the expenditures which the executor made for the support of the appellant had been first sanctioned by an order of the court, then the executor would have been justified, as trustee, in the expenditures which he made.
The fourth item charged the executor with the care and control of the portion of the $3200 bequeathed to each of the legatees (except the share of James C. Cooper) until they should severally attain the age of twenty-one years, and it was made his duty, by the terms of the will, to provide for their support and maintenance out of the avails' of the estate, until they should reach that age.
A general guardian who had such a fund in his hands, belonging to his infant wai*d, who had no other means of support, would have the right to apply to the court for an order authorizing him to expend so much of the fund as was necessary to the support of the infant, and in case no previous application was made, the court would allow, in his account, for all such expenditures as were clearly proved to be for necessaries; requiring the guardian to prove, beyond all dispute, that the expenditures were necessary and at reasonable prices.
I think as to the disposition of this fund, and the furnishing of such things as were necessary for the appellant, the powers expressly delegated to the executor by the will *514clothed him, to that extent, with the same duties and rights which by law are devolved upon a guardian; and that the court not only has' the power, but that under the circumstances, it iá its duty, to sanction the acts of the executor, in the expenditures made for the appellant.
[Onondaga General Term, October 6, 1868.The decree of'the surrogate should be affirmed.
Foster, Mullin and Morgan, Justices.]