(dissenting). In my opinion it is more realistic and more reasonable to permit the trustee to consider the widow’s resources in determining whether or not to invade the principal.
That this was the intent of the testator is manifest by the fact that during"the four years intervening between the execution of the will and the testator’s death — and a will is an ambulatory instrument — the now incompetent’s social security income was used in part payment of her upkeep. It is difficult to believe the testator wished it otherwise after Ms death. Nor can it be. He envisaged a surplus. He said, in paragraph 2 (A)-(l) of Ms will, “If * * * any part of the net income thereof need not be used for the support and maintenance of my said wife, such part of the income shall be added to and become part of the principal of the trust estate.” TMs provision is an integral part of Ms intent, and must be given force. The only way it makes any sense at all is that the incompetent’s independent income and resources are also to be calculated.
Nor, under all the facts and circumstances obtaining at the time of the will’s execution, is tMs interpretation unsupported by the precedents. Absent explicit direction to the contrary* the view that invasion of the principal is dependent on and *11must be preceded by a consideration of the beneficiary’s needs and resources, is not lacking in authority. (Matter of Martin, 269 N. Y. 305; Matter of Garrett, 9 A D 2d 545.) And this course should be followed here. Otherwise, an incongruity results. The corpus will be eroded — for as it decreases, its yield will correspondingly diminish, to the point of destruction, if the widow lives long enough. And an injury is wrought to the children of the testator. All the while, the socal security payments of the widow here will batten and pointlessly accumulate. Social security was devised to allay the fears and mitigate the privations of old age, not to multiply for some one else, other than the subject, to enjoy.
I would reverse and allow the trustee to consider the assets and income of the widow in determining whether to invade the corpus of the trust.
Stevens, J. P., and Capozzoli, J., concur -with McNally, J.; McGivern, J., dissents in opinion, in which Steuer, J., concurs.
Order entered on June 15, 1966, affirmed with $50 costs and disbursements to all parties filing briefs, payable out of the estate.