out any let or hindrance from any source whatever." By the next provision, she bequeathed to her daughter $8,000, to be paid out of her real and personal estate, at and after the death of her husband, provided there was that amount remaining. In the next provision, she stated: "I wish it to be distinctly understood that my said husband may use so much of my real and personal estate as he may wish to during his lifetime, and, at his death, if there be the sum of $8,000 remaining in his hands, that that amount be paid to my daughter [naming her], and if there be not the sum of $8,000 in his hands, then and in that case it is my wish that my said daughter have and receive whatever then remains in my said husband's hands, to do with as she shall think best." It was held that while the disposition of the estate by the husband was limited to his lifetime, during that period he had the right to use and dispose of the whole estate; and this right was not limited to his maintenance and support, but he might provide himself with the comforts and luxuries of life,-with anything that would gratify his appetites or his tastes; and if, after all his wants had been supplied and his tastes gratified, any remained unexpended, that remainder he could not dispose of by will. In affirming the decree in (1889) 52 Hun, 303, 5 N. Y. Supp. 249, it was said that the adjudication made by the court below was with respect to the personal property only.

In the case of Re Ithaca Trust Co. (1917) 220 N. Y. 437, 116 N. E. 102, reversing (1916) 176 App. Div. 40, 162 N. Y. Supp. 355, it appeared that a testator's will gave all his property to his wife and mother, to be divided equally between them. A codicil to the will made by him later provided: "I hereby will and direct that the one half () of my estate which in said will I gave to my mother, Harriet Simpson, shall be hers absolutely to use up, spend or give away, in any way she sees fit, but I will and direct, in the event there is any of the property hereby willed to her left and undis

posed of by her at the time of her death, that sum or amount of property thus willed to her shall belong to my said wife, Mary A. Simpson, providing she shall be living at that time, and, as thus modified, I hereby confirm my said will in all respects." It was held that the mother took a life estate with power to use, spend, or give away the principal in her lifetime, but without power of disposition by will.

In Warren v. Ingram (1910) 96 Miss. 438, 51 So. 888, Ann. Cas. 1912B, 422, wherein it appeared that a testator gave his wife all his property, to have and to hold during his life, and to do with the same as, in her judgment, she might deem best, it was held that the wife took a life estate, with the power at her discretion to convey the fee in the land devised.

In Andrews v. Brumfield (1856) 32 Miss. 107, it appeared that a bequest of property to the testator's wife was, in the first clauses of the . will, limited to her, expressly, for the term of her natural life. By a later clause he declared it his will that the property bequeathed her by the former clauses should be delivered into her possession as soon after his death as possible, that she might have full control of the same, and be empowered to dispose of the same as she might think proper. It was held that the will showed, first, that the property was given for life; and, second, that the legatee should possess the power to sell, give, or transfer to whomsoever she might elect.

In Downie v. Buennagel (1884) 94 Ind. 228, it appeared that a testator devised to his mother a life estate in all his property, "with full power to sell the same, or any part thereof, and appropriate the proceeds to her own use," it being his will that she should enjoy the same as though it were devised to her in fee. It was held that a conveyance by the life tenant by a deed of general warranty was an execution of the absolute and unlimited power of disposition conferred on her.

In Gibony v. Hutcheson (1899) 20 Tex. Civ. App. 581, 50 S. W. 648, un

der a will giving all the testator's property to his wife, she to control and manage the same during her life as to her seemed best, and empowering her to buy, sell, and manage as to her judgment should seem best, it was held that the widow took an absolute life estate in her husband's property, with power to manage, sell, and dispose of the fee for her own benefit, but that she did not have, under this power, the right to make a fraudulent disposition of the property for the purpose of defeating the rights of the residuary legatees and devisees.

II. Life estate with power of anticipation for support and maintenance.

a. Purpose for which principal may be anticipated.

1. General rule.

Where a will gives a life interest by its express terms, with the power of disposing of part or all of the property for the particular purpose of the support and maintenance of the life tenant, with a valid gift over to others, which may be disappointed by the exercise of his power by the life tenant and the application of the principal to the purposes indicated, the life tenant has a right to the entire income of the property, or of so much thereof as is devised to him, depending on the context of the particular will, and is entitled to encroach on any or all of the principal of the estate, or the proceeds of a sale of the whole or any part thereof, if such encroachment is necessary for the purpose of obtaining a comfortable support and maintenance for himself, and is made in good faith, and not for the purpose of defrauding the remaindermen. He cannot, however, use the corpus for another purpose, nor give it away, nor waste it; nor can he devise it, either by will or by a deed operating as a testamentary disposition.

Alabama.-Cain v. Cain (1899) 127 Ala. 440, 29 So. 846.

California.-Hardy v. Mayhew, 158 Cal. 95, 139 Am. St. Rep. 73, 110 Pac. 113; Luscomb v. Fintzelberg (1912) 162 Cal. 433, 123 Pac. 247.

V.

Phillips

Delaware.-Newlin (1905) Del. Ch., 60 Atl. 1068. Georgia.-Stark v. Chambers (1913) 140 Ga. 601, 79 S. E. 535.

Illinois.-Henderson v. Blackburn (1882) 104 Ill. 227, 44 Am. Rep. 780; Griffin v. Griffin (1892) 141 Ill. 373, 31 N. E. 131; Lehnard V. Specht (1899) 180 Ill. 208, 54 N. E. 315; Fleming v. Mills (1899) 182 Ill. 464, 55 N. E. 373; Barr v. Gardner (1913) 259 Ill. 256, 102 N. E. 287; Burke v. Burke (1913) 259 Ill. 262, 102 N. E. 293.

Andiana.-South v. South (1883) 91 Ind. 221, 46 Am. Rep. 591; John v. Bradbury (1884) 97 Ind. 263; Rowley v. Sanns (1895) 141 Ind. 179, 40 N. E. 674; Rinkenberger v. Meyer (1900) 155 Ind. 152, 56 N. E. 913. See also Anderegg v. Ross (1859) 13 Ind. 413.

Iowa.-Re Proctor (1895) 95 Iowa, 172, 63 N. W. 670; Baldwin v. Morford (1902) 117 Iowa, 72, 90 N. W. 487; Rowe v. Rowe (1903) 120 Iowa, 17, 94 N. W. 258; Hamilton v. Hamilton (1910) 149 Iowa, 321, 128 N. W. 380 (see, however, a former opinion in this case, reported in (1908) 140 Iowa, 282, 115 N. W. 1012, 118 N. W. 375); Southwick v. Southwick (1918) Iowa, -, 168 N. W. 807.

Kentucky.-Scott v. Scott (1867) 2 Bush, 147; Paxton v. Bond (1891) 12 Ky. L. Rep. 949, 15 S. W. 875; Hosman v. Willett (1908) 32 Ky. L. Rep. 906, 107 S. W. 334; Watkins v. Watkins (1909) Ky. - 120 S. W. 341.

Maine.-Hall v. Preble (1875) 68 Me. 100; Hall v. Otis (1880) 71 Me. 326; Nash v. Simpson (1886) 78 Me. 142, 3 Atl. 53; Pierce v. Stidworthy (1887) 79 Me. 234, 9 Atl. 617, judgment modified in (1888) 81 Me. 50, 16 Atl. 333; Richardson v. Richardson (1888) 80 Me. 585, 16 Atl. 250; Merrill v. Hayden (1893) 86 Me. 133, 29 Atl. 949; Hatch v. Caine (1894) 86 Me. 282, 29 Atl. 1076; Small v. Thompson (1899) 92 Me. 539, 43 Atl. 509; Haseltine v. Shepherd (1904) 99 Me. 495, 59 Atl. 1025; Richards v. Morrison (1906) 101 Me. 424, 64 Atl. 768.

Maryland.-Benesch v. Clark (1878) 49 Md. 497; Mills v. Bailey (1898) 88 Md. 320, 41 Atl. 780; Roberts v. Roberts (1905) 102 Md. 131, 1 L.R.A.

(N.S.) 782, 111 Am. St. Rep. 844, 62 Atl. 161, 5 Ann. Cas. 805; Davison v. Safe Deposit & T. Co. (1906) 103 Md. 479, 63 Atl. 1044.

Massachusetts.-Dodge v. Moore (1868) 100 Mass. 335; Hoxie v. Finney (1888) 147 Mass. 616, 18 N. E. 593; Stocker v. Foster (1901) 178 Mass. 591, 60 N. E. 407; Champney v. Bradford (1907) 196 Mass. 259, 81 N. E. 993; Allen v. Hunt (1913) 213 Mass. 276, 100 N. E. 552; Kemp v. Kemp (1916) 223 Mass. 32, 111 N. E. 673; Griffin v. Kitchen (1917) 225 Mass. 331, 114 N. E. 431; Sparhawk v. Goldthwaite (1917) 225 Mass. 414, 114 N. E. 718; Homans v. Foster (1919) Mass. -, 121 N. E. 417. Michigan.-Glover v. Reid (1890) 80 Mich. 228, 45 N. W. 91; McCarty v. Fish (1891) 87 Mich. 48, 49 N. W. 513; Farlin v. Sanborn (1910) 161 Mich. 615, 175 Am. St. Rep. 525, 126 N. W. 634; Walsh v. Backus (1914) 183 Mich. 527, 149 N. W. 1022; Drier v. Gracey (1918) Mich. —, 169 N. W. 835; Woolfitt v. Preston (1918) Mich., 169 N. W. 838.

New York.-Bell v. Warn (1875) 4 Hun, 406; Thomas v. Pardee (1877) 12 Hun, 151; Re Grant (1891) 61 Hun, 624, 40 N. Y. S. R. 944, 16 N. Y. Supp. 716, followed in (1895) 86 Hun, 617, 66 N. Y. S. R. 822, 33 N. Y Supp. 193; Terry v. Wiggins (1872) 47 N. Y. 512, affirming (1869) 2 Lans. 272; Smith v. Van Ostrand (1876) 64 N. Y. 278, reversing (1873) 3 Hun, 450, 5 Thomp. & C. 664; Rose v. Hatch (1891) 125 N. Y. 427, 26 N. E. 467, affirming (1890) 55 Hun, 457, 8 N. Y. Supp. 720; Swarthout v. Ranier (1894) 143 N. Y. 499, 38 N. E. 726, affirming (1893) 67 Hun, 241, 22 N. Y. Supp. 198; Simmons v. Taylor (1897) 19 App. Div. 499, 46 N. Y. Supp. 730; Re Hunt (1903) 84 App. Div. 159, 82 N. 2 A.L.R.-79.

Y. Supp. 538, affirmed in 179 N. Y. 570, 72 N. E. 1143; Hasbrouck v. Knoblauch (1909) 130 App. Div. 378, 114 N. Y. Supp. 949, modifying judgment and affirming point under discussion in (1908) 59 Misc. 99, 112 N. Y. Supp. 159; Re Briggs (1917) 180 App. Div. 752, 168 N. Y. Supp. 597, modifying (1917) 101 Misc. 191, 167 N. Y. Supp. 632; Peck v. Smith (1918) 183 App. Div. 336, 170 N. Y. Supp. 500; Blauvelt v. Gallagher (1897) 22 Misc. 564, 49 N. Y. Supp. 608; Huggins v. Lewis (1900) 31 Misc. 292, 64 N. Y. Supp. 355; Re Weeden (1902) 37 Misc. 716, 76 N. Y. Supp. 462; Re Hunt (1902) 38 Misc. 30, 76 N. Y. Supp. 968, affirmed in (1903) 84 App. Div. 159, 82 N. Y. Supp. 538, which is affirmed in (1904) 179 N. Y. 570, 72 N. E. 1143; Re Parsons (1902) 39 Misc. 126, 78 N. Y. Supp. 975; Re Trelease (1906) 49 Misc. 205, 96 N. Y. Supp. 318, affirmed in (1906) 115 App. Div. 654, 100 N. Y. Supp. 1051; Re Hibbard (1907) 53 Misc. 196, 104 N. Y Supp. 583. See also Re Rogers (1914) 149 N. Y. Supp. 462.

Pennsylvania.-Gross v. Strominger (1896) 178 Pa. 64, 35 Atl. 852; Yetzer v. Brisse (1899) 190 Pa. 346, 42 Atl. 677; Tyson's Estate (1899) 191 Pa. 218, 43 Atl. 131; Trout v. Rominger (1901) 198 Pa. 91, 47 Atl. 960; Henninger v. Henninger (1902) 202 Pa. 207, 51 Atl. 749; Kennedy v. Pittsburg & L. E. R. Co. (1907) 216 Pa. 575, 65 Atl. 1102; Allen v. Hirlinger (1907) 219 Pa. 56, 13 L.R.A. (N.S.) 458, 123 Am. St. Rep. 617, 67 Atl. 907; Nieman's Estate (1910) 229 Pa. 41, 77 Atl. 1095; Watson's Estate (1913) 241 Pa. 271, 88 Atl. 433; Morel v. Oakley (1916) 253 Pa. 107, 97 Atl. 1029; Aurand's Estate (1916) 25 Pa. Dist. R. 725. See also Doran v. Piper (1894) 164 Pa. 430, 30 Atl. 306; Richey's Estate (1915) 251 Pa. 324, 96 Atl. 748.

Rhode Island.-Phillips v. Wood (1887) 16 R. I. 274, 15 Atl. 88; Phillips v. Brown (1888) 16 R. I. 279, 15 Atl. 90; Gardner v. Whitford (1901) 23 R. I. 396, 50 Atl. 642. See also Re Tilton (1899) 21 R. I. 426, 44 Atl. 223.

South Carolina.-Moody v. Tedder (1881) 16 S. C. 557.

Tennessee.-Matthews v. Capshaw

(1902) 109 Tenn. 480, 97 Am. St. Rep. 854, 72 S. W. 964; Emert v. Blair (1908) 121 Tenn. 240, 118 S. W. 685. Vermont.-Parks v. American Home Missionary Soc. (1889) 62 Vt. 19, 20 Atl. 107.

Wisconsin.-Otjen v. Frohbach (1912) 148 Wis. 301, 134 N. W. 832. Canada. Knapp v. King (1874) 15 N. B. 309.

The rule as heretofore stated is also applicable to such personal property as money. If given a life interest therein, with the power to use the principal for certain purposes, as for his support and maintenance, the life tenant may not use it for any other purpose and may not give it away. Hardy v. Mayhew (1910) 158 Cal. 95, 139 Am. St. Rep. 73, 110 Pac. 113.

In Pennsylvania, where a testator provides by his will for the comfortable maintenance of his widow, the orphans' court has jurisdiction to fix the amount and to enforce payment of the sum required for that purpose. Baylor's Estate (1915) 249 Pa. 5, 94 Atl. 442. See also Gelb v. Weisberger (1915) 247 Pa. 416, 93 Atl. 499. And it is held in that state that where a will contains a provision for the appropriation of so much of the principal as shall be necessary for the maintenance of the testator's widow during her life, this appropriation is not intended to be used merely as a supplement to the widow's own industry, or to the charity of her child or children, but is to be measured by the reasonable cost of her living, and it can matter nothing to the estate how she obtained that living. Mounts's Appeal (1884) 107 Pa. 402; Baylor's Estate (Pa.) supra. So, where a person has two funds to draw on for living expenses, one his own individual estate, and the other the estate of another in which he has a life interest with power to consume, in the absence of evidence to the contrary, there is a presumption that he would expend the latter before drawing on the former. Richey's Estate (1915) 251 Pa. 324, 96 Atl. 748. See also Welsh's Estate (1913) 239 Pa. 616, 86 Atl. 1091.

In the case of Richey's Estate (Pa.) supra, on an accounting by the execu

tor of the estate of a decedent to whom her husband in his will had given a life interest with the power to consume so much of the principal as she might find necessary for her comfortable maintenance and support, the principal controversy at bar concerned a comprehensive claim by the accountant to cover money expended by his decedent in her lifetime for support and maintenance, he having placed a general item in the account embracing living expenses, doctor's bills, medicines, help in house, washing, and other expenses of like character, without any particularization. It was held that the court below had properly received testimony showing the position in life occupied by the life tenant, the style and manner in which she maintained herself, her state of health, etc., and had properly concluded that she must have spent at least the amount claimed, and for which credit was allowed.

2. Particular rights and uses.

(a) Personal use.

In each of the following cases it was held that, by the testamentary provision indicated, the life tenant took a power to anticipate the principal for his personal use as his necessities might require, but for no other purpose:

Barr v. Gardner (1913) 259 III. 256, 102 N. E. 287. The will gave the testator's widow, in addition to the use, interest, and income of one half of the remainder of the personal estate after the payment of debts, so much of the principal as might be necessary for her comfortable maintenance and support during her natural life.

Anderegg v. Ross (1859) 13 Ind.

413. The first item of the disposing part of a will was a bequest to the testator's wife of all his real and personal estate and everything which he had or owned at the time of his decease, for and during her natural life, she paying all his debts and a certain legacy, not the executors. Other special legacies were then provided for, to be paid after the death of the widow out of such parts of his per

sonal estate, or the proceeds thereof, as might be in the hands of his wife at the time of her death; and it was further provided that if the personal property was not sufficient for that purpose, lands should be sold, etc., but no provision was made for a resort to the executors to obtain funds

for that purpose. Certain residuary legacies were then set forth of all the residue of his personal and real estate, and the proceeds thereof, at the death of his wife, "which may remain unconsumed and unexpended in my said wife's hands," excepting the amounts necessary for the payment of the special legacies. Then followed a provision that the testator's wife should use all the personal estate and the rents and profits of the real estate, "or so much thereof as she may require for her use and benefit," but this was followed immediately by the language, “and may and shall have the absolute use and control of all my said real and personal estate for and during the term of her natural life, and no longer;" and then again the expression occurred that she should have "the right to use, expend, and consume such parts and portions of my said personal estate, and the rents, issues, and profits of my real estate, as she may require for her own use and benefit."

Scott v. Scott (1867) 2 Bush (Ky.) 147. The will contained the following clause: "I direct that my wife shall have as much of the stock, implements, furniture, and personal personal property, including money on hand at my death, as she may think necessary for her comfort, convenience, and maintenance."

Watkins v. Watkins (1909)

Ky.

120 S. W. 341. The testator directed the executors of his will to invest the money derived from the sale of his business in bonds, and to use the interest for his wife, "from year to year, enough to keep her comfortable, and if necessary to use some of the capital to keep her comfortable."

Pierce v. Stidworthy (1887) 79 Me. 234, 9 Atl. 617. The testator gave all his residuary estate to his wife

"for the term of her life, with the right and power to dispose of the income, rents, profits and interest of the same, and with the further right to apply to her use, if needed, any part of the principal of the personal property, making her sole judge of the need of so doing."

Merrill v. Hayden (1893) 86 Me. 133, 29 Atl. 949. The will gave all the testator's property to his daughter for life, "the income thereof and so much of the principal as she shall need, to be spent by her," the residue both of the principal and income left at her decease to go to a missionary society.

Hatch v. Caine (1894) 86 Me. 282, 29 Atl. 1076. The will gave the residuary estate to the testator's wife, for her use and benefit during her life, with full power to sell and convey or exchange any or all of it, "and to use the principal thereof, if in her judgment her comfort requires it; she to be the sole judge of the amount needed, and having the right to spend the whole if she deems it necessary;" and whatever remained of his estate at her decease, not disposed of by her, was to go to a mission society.

Small v. Thompson (1899) 92 Me. 539, 43 Atl. 509. The testator gave all of his estate, after the payment of debts, funeral expenses, and charges of administration, to his widow for her life, with an absolute power of disposal for her use and benefit, and at her death and "after payment of her just debts and funeral expenses," the remainder, if any, to his children. In a codicil to the will, the testator stated: "But to make more clear my intention therein I declare that my will is, that the gift, bequest and devise to my said beloved wife is not to be absolute or an estate in fee but an estate for and during her natural life, with the right to dispose of the property so given, bequeathed and devised to her, by full title under the authority of the said will as therein provided, for her benefit, so far as she may deem necessary."

Richards v. Morrison (1906) 101 Me. 424, 64 Atl. 768. The will gave the residue of the estate in trust,