(dissenting):
By the terms of the will the testatrix directed her executors to safely invest the sum of $6,000 during the lifetime of her oldest son, Marc Joseph Emile Muller, to pay him the income thereof, and after his death to divide the principal among his children in equal shares, the issue of any deceased child to take the share its parent would have taken if then living.
The father of these children has now petitioned the court for the payment of a portion of the principal of this legacy to him, to be used in support of the children to whom it has been in terms given.
In support of the application he has stated in his petition that he has been disabled by illness from following his ordinary occupation, and for that reason has not been able to support and maintain his family, and that his wife has also suffered from the same character of illness. The statements made upon this subject are of a very general nature and verified only in the same manner, and the additional affidavits produced are still more general in their nature.
The court is required to proceed with very great caution in diverting a fund of this nature, or any part of it, from the .purpose to which the testatrix has expressly devoted it. It has power, where the emergency may be great, to proceed in this manner, but that *422is never permitted to be done unless a case of extreme urgency is established by the papers. (Matter of Bostwick, 4 Johns. Ch., 100; Matter of Kane, 2 Barb. Ch., 375). This case has not been so sust lined by the proofs presented in support of the application.
It further appears that the legacy has been invested on bond and mortgage by the executors at five per cent interest, producing a fund of $300 per year, which is now paid over to the father of these children; and that sum, together with what he probably may be able to earn by the restoration of his health, will be sufficient, with the observance of economy, to meet the wants of his family.
Under these circumstances the court should not interfere, when by its action it will break up the scheme of the will of the testatrix and substantially give a direction different from that which she deemed proper for the disposition of this legacy.
The order should be affirmed, without costs.
Order modified as directed in opinion of Brady, J.