We see no reason to doubt the correctness of the judgment below.
By the third clause of his will the testator gave the entire net income of his estate to his widow during her life, leaving it entirely to her discretion to apply or not any portion of said net income to the use of either of their children.
By the sixth clause, the construction of which is in question, he directed his executor, after the decease of his widow, “to apply one-half of the net income to the use and for the maintenance and support of his son Robert Ireland (who qualified as executor), his wife and children during the life of his said son Robert.”
There is nothing in the language of this clause indicative of an attempt to vest the defendant Robert Ireland with discretion to diminish the shares of the income given to the beneficiaries respectively, or to vest said Robert with more than one-third of the share in question.
The direction to him was plain and imperative, to apply the fund for the support of himself, his wife, and his son, and his duty in making the distribution is simply ministerial.
Whenever an estate or fund is given, either by statute or devise, for the maintenance of parents and children, they are held to participate equally in it. (Smith v. Bowen, 35 N. Y., 83; Franklin v. Schermerhorn, 8 Hun, 112; Hilton v. Bender, 69 N. Y., 86.) And if it be given to one of the participants in trust for himself and the others, any one of the cestuis que trust may enforce the trust as against the trustee (Chase v. Chase, 2 Allen, 101), who can be held responsible for any misapplication of the fund. (Smith *365v. Bowen, supra.) A comparison of the clause in question with the third clause, in which the widest discretion is expressly, and for reasons set forth at length, vested in the widow while acting.as executrix, is strongly confirmatory of the views above expressed, and leads to the conclusion that the testator did not intend to confer the same discretion upon her successor.
The judgment and order of the Special Term must be affirmed, with costs.
Present — Barnard, P. J., and Gilbert, J.; Dyeman, J., not sitting.Judgment affirmed, with costs.