The trustee, Mr. Hobbs, desires advice of the court as to *Page 34 where the addition to the sum of ten thousand dollars, if any, will go, upon the death of William and Lucy. That question has been argued by counsel and is for aught I see, properly before the court; and, although it may turn out to be of no practical consequence, for the reason that there may be no addition to be disposed of at that time, yet, as all parties are before the court, and have been heard, I think it should be decided now; and I am clearly of opinion that the addition, by the terms of the will, goes to the children of Paul and Perkins, and not to Lucy or her heirs.
The fourth section of the will is wholly occupied with this bequest of ten thousand dollars, and directions to the trustee as to the management and disposition of both the income and principal; and the whole section together shows a clear intention as it seems to me on the part of the testatrix, to withdraw this fund of ten thousand dollars, as well as all additions that may be made to it from income during the life of William, from the operation of any other part of the will, and dispose of the same finally, according to the directions therein given. After the death of William, said sum, with the addition, is to be held by the trustee, and the net income of the whole paid to Lucy during her life. The addition is here treated as having become capital, and annexed to the principal sum of ten thousand dollars; and when, in the next clause, it is provided that said sum shall be paid to the children of Paul and Perkins, upon the death of William and Lucy, I think it hardly admits of a doubt that the testatrix intended, by "said sum," the sum of which Lucy is to have the income after the death of William, that is the ten thousand dollars and additions made thereto during the life of William.
But the trustee is directed, in effect, to expend so much of the income of said ten thousand dollars as may be necessary in the comfortable support of William. What is necessary for the comfortable support of an insane person is a broad question. Certainly, comfortable support implies and includes some degree of pleasure, something more than a bare subsistence. The testatrix appointed a competent trustee, one in whose humanity, as well as judgment and discretion, she doubtless had confidence; and her intention to entrust this matter of the comfortable support of her unfortunate son very largely to his discretion is unmistakable.
Any reasonable indulgence, or pleasure, that will contribute to his comfort or promote his recovery, will, I think, clearly come within the spirit as well as the letter of the instructions to the trustee. In a word, my opinion that it is the duty of the trustee to administer to the comfort of his ward, out of the income provided for that purpose, with a liberal hand.
SMITH, J. The testatrix evidently contemplated that the entire income of the sum of ten thousand dollars, in the hands of the trustee, might not be required for the comfortable support of her son William, and that at his death there might be a balance of income unexpended. *Page 35 Her direction to pay over, after the death of William, the net income of said sum of ten thousand dollars, and of the addition to the same, if any, to Lucy, during her natural life, annually must mean the income of the sum, with its accumulations, during the life of William. The use of the preposition "of," in the phrase "and of the addition to the same," and the direction to pay it over, annually, during the life of Lucy, make it clear to my mind that the testatrix intended Lucy should receive the income only, of the accumulations to said fund, as well as the income, only, of the original fund.
If this paragraph stood alone, there would be no room for doubt; but it is claimed that, because, by the next paragraph of the will the trustee is directed to pay said sum, in equal shares, to the Paul and Perkins children she intended by the words said sum, the sum of ten thousand dollars originally invested in the hands of the trustee only, and that the accumulations, not being specifically devised fell into the residuary clause, and so were bequeathed to Mrs. Chesley. If this is the correct construction, then it was unnecessary to insert the words "and of the addition to the same" in the second paragraph unless it were that the testatrix intended the accumulations should go to the heirs of the said Lucy upon her decease. If such had been her intention, she could hardly have failed to use language apt for that purpose, and not have left her intention to be inferred. And the uncertainty who might be the heirs of Mrs. Chesley, is an additional reason why she did not intend such construction to be given to her language. I think the ten thousand dollars, with additions, constitute "the sum" which, at the decease of Lucy is to be divided among the Paul and Perkins children.
By the terms of the will, the trustee is directed to expend so much of the income of the fund as is necessary for the comfortable support of William in such manner as the trustee may judge most beneficial for him. The trustee is thus invested with large discretion in the expenditure of the income. It is clear the testatrix intended this unfortunate son of hers should be made as comfortable as the nature of his disease would allow. If reasonable expenditures for the pleasure of the ward will increase the comfort of his support and will be beneficial for him, I think the trustee would be warranted in thus appropriating a portion of the income. It is not possible to lay down any definite rule, except that the amounts should be reasonable, and should be conducive to the comfort and support of the ward.
Decree accordingly. *Page 36