(dissenting). I dissent and vote for affirmance. This is an action brought by the widow of Edward S. Barlow for a declaration judgment declaring her rights under paragraph Fourth of her husband’s will and the supplemental agreement of employment voluntarily entered into as provided for by the terms of said will.
We first turn to the language of the will to ascertain the intention of the testator as regards his widow and infant daughter. Paragraph Second of the will states that the provisions thereafter made in his will are “ based upon my desire to provide security for my present wife, Hollis G-. Barlow, and our daughter, Holly.” How was such security to be afforded? The language is clear that those who were to take over and operate his advertising agency enter into a written contract with his widow for her employment in some “ appropriate capacity” with the Barlow Advertising Agency for a term of 10 years at an annual salary of $7,500.
A written contract of employment covering such duties as may from time to time be assigned her by the board of directors or officers of the Barlow Advertising Agency, Inc., for the time and salary specified was thereafter entered into with plaintiff. The duties assigned her were those of librarian; they were not arduous; they did not require her full time or require that she report for work at any stated hour. It is apparent that the contract fully met the requirements of the will that his widow be employed in an “appropriate capacity”. The difficulty is that plaintiff, of her own volition, possibly aided and abetted by the wishes and desires of her present husband, abandoned her position as librarian, remarried and moved to Troy, Hew York, where she now resides. It is her contention that the defendant should continue to furnish her with work in an “appropriate capacity” to be performed by her at Troy, Hew York, or to state it more bluntly, plaintiff seeks a pension of $7,500 per year. Such, in my opinion, was not the intention of the testator. There can be no question but that it was the intention of the testator to provide financial security for his widow by requiring that she be employed in an *484appropriate ,capacity by the corporation that bore his name but I find no language indicating or supporting any intention that the business was to carry her as a pensioner—certainly not under the changed circumstances brought about by her remarriage and leaving Syracuse where the Barlow Advertising Agency had its home office and place of business.
All concur, except Vaughan, J, who dissents and votes for affirmance, in an opinion. Present — McCurn, P. J., Vaughan, Kimball, Williams and Goldman, JJ.
Judgment and order reversed on the law, with costs, and motion denied, with $10 costs.