The opinion
CARTER, J.
I dissent.
The more persuasive authority holds that where words such as those here used are involved, the amount required to be paid to the beneficiary of the trust is computed without consideration of his other sources of income and certainly not the resources of the husband of the beneficiary here. It is said: “It is a question of interpretation whether the beneficiary is entitled to support out of the trust fund even though he has other resources. Where the trustee is directed to pay to the beneficiary or to apply for him so much as is necessary for his maintenance or support, the inference is that the settlor intended that he should receive his support from the trust estate, even though he might have other resources.” (Scott on Trusts, § 128.4 ; emphasis added.) There being such an inference, the probate court could and did draw it and hence there is sufficient evidence to support its order.
It is not to be supposed that a testator would intend that a beneficiary generally, or intended here that her husband Should lead a useless, idle life thus producing no independent income. That, however, is precisely the result if consideration must be given to independent resources. The natural tendency will be for the beneficiary or her husband, to eschew lucrative endeavor because every penny earned will be a penny lost as beneficiary of the trust. At least it is a reasonable inference that the testator did not have such an intention. As the court said in the leading case of Holden v. Strong, 116 N.Y. 471 [ 22 N.E. 960, 961 ] : “We do not understand that, in order to receive the benefit of the provisions of the will, it is necessary for him [beneficiary] to remain idle, and refrain from all personal exertion ; neither does the fact that he is frugal and saving, and has accumulated a fund which he has deposited in the bank, deprive him of the right to the support provided for him. The trial court properly held that the trustee was to exercise a sound judgment and discretion as to whether the money necessary for the support and maintenance of the plaintiff should be delivered to him, and he allowed to procure it, or whether the board, clothing, etc., should be purchased and provided for him by the trustee.” *179 That case was cited with approval and followed in In re Clark’s Will, 280 N.Y. 155 [ 19 N.E.2d 1001 ], where it was said (p. 1003) : “The will clearly provides for payment by the trustee . . . of the entire income from the trust and of so much of the principal in addition thereto as, in the sole judgment of the trustee, shall by it be deemed necessary for every comfort and support of the widow. . . . In conformity to that purpose and intent, the trustee is required to furnish every comfort and support for the widow which it may deem in a sound discretion necessary out of income and, if required, out of the corpus, even to the extent of exhausting the entire corpus of the trust, without taking into consideration or account the personal income of the beneficiary from any other source. Holden v. Strong, 116 N.Y. 471 [ 22 N.E. 960 ] ; Rezzemini v. Brooks, 236 N.Y. 184 [ 140 N.E. 237 ].” (Emphasis added.) The Clark case was decided (1939) six years after In re Martin’s Will (1933), 269 N.Y. 305 [ 199 N.E. 491 ], relied upon by the majority, and the Clark case does not even mention the Martin case.
To the same effect as the Clark case and the quotation from Scott on Trusts, see Cross v. Pharr, 215 Ark. 463 [ 221 S.W.2d 24 ] ; Hoops v. Stephan, 131 Conn. 138 [ 38 A.2d 588 ] ; In re Worman’s Estate, 231 Iowa 1351 [ 4 N.W.2d 373 ] ; Pearce v. Marcellus, 137 N.J.Eq. 599 [ 45 A.2d 889 ] ; In re Leonard’s Estate, 115 Vt. 440 [ 63 A.2d 179 ] ; and cases collected, Scott on Trusts, §128.4 ; 2 A.L.R.2d 1383 , 1431.
Finally, the same rule is stated: “It is a question of interpretation whether the beneficiary is entitled to support out of the trust fund even though he has other resources. The inference is that he is so entitled.” (Rest. Trusts, § 128e ; emphasis added.)
I would, therefore, affirm the judgment.