Estate of Patten

KAUFMAN, P. J.

This is an appeal by the remainderman from an order of the probate court directing the trustee of a testamentary trust to invade the corpus to reimburse the life tenant for certain medical expenses.

[169]

The facts are not in dispute. The respondent, Phoebe M, W. Patten, was the sole life beneficiary of a testamentary trust created by the will of her deceased husband, Elmer E. Patten. The appellant, E. Eugenia Patten, the daughter of the decedent by a prior marriage, is the sole remainderman of the trust, and the executrix of the estate.

The will, naming Crocker-Anglo National Bank as trustee, so far as relevant further provides: “FiFTH(d) After making all the payments hereinbefore enumerated, the trustee shall pay over the net income from said trust estate to my said wife, Phoebe Margaret Wood Patten, during her lifetime. In the event that the income of my said wife should at any time be insufficient to defray expenses incurred by illness, accident, or other dire need, then in addition to the net income the trustee shall pay over to my said wife such of the principal of the trust estate as my said trustee shall deem necessary, and the judgment and determination of the trustee as to the necessity and the amount of such payments shall be conclusive.”

During the term of the trust and prior to August 23, 1961, the respondent incurred medical expenses in excess of $3,000. As her income was insufficient to defray these expenses, she withdrew the necessary amounts from her savings and borrowed $5,000, using as security her home at 373 Staten Avenue. This home was her separate property and had been her home before her marriage to the decedent. When she requested the trustee to reimburse her from the principal of the trust estate, the trustee independently and on advice of counsel refused because the respondent had taken up residence at the Women’s Athletic Club and had not sold or rented the Staten Avenue property. Thereafter, the respondent filed her petition requesting the court to instruct the trustee to invade the corpus to reimburse her for the medical expenses. Appellant did not oppose this petition or participate in the proceedings below.

The court, in addition to the facts stated above, found that the Staten Avenue home was the principal interest, outlet and source of diversion and recreation for the respondent, who visited the premises three or four times a week; that the home contained valuable antiques and artifacts that could not be safely moved and stored except at great and unwarranted expense; that the home would require considerable and expensive repair before it could be rented or leased; that the home