OPINION While it is true that in a sense the dwelling-house contemplated by the applicant will be used for "shelter," it can hardly be said that the purchase of a home for the sum of $6,300 is within the meaning of that term, as used in the will; nor does it come within the definition of "necessaries of life" for a house is not a necessary. In re Thornton, 23 Fed. Cas. 1144. New York Building Loan Co. v. Fisher, 23 App. Div. 363. Allen v. Lardner, 78 Hun, 603, 29 N. Y. Supp. 213 (G. T. 1st Dept. June 1894). In the latter case the court said (p. 605): "It cannot be successfully maintained that the house was a necessity for the infant. We are not aware of any decision giving so broad a construction to the word necessaries.' They refer to supplies which are personal, either for the body as food, clothing, lodging, or those necesary for the proper cultivation of the mind, as suitable instruction, etc.” Therefore if this loan is to be sanctioned at all, it must come within the purview of that clause which permits the trustees to provide "such other financial aid as may seem to them fitting and proper to such persons as they shall select as being in need of the same." On this point a reference to the opinion of the Court of Appeals sustaining this trust (203 N. Y. 380) is enlightening. At page 386 the Court said: "In construing the will now under consideration the words such other financial aid' must be read with the words that precede them, and the expression of preference in selecting persons to receive the fund subsequently stated in the same paragraph, and as so read the preceding words not being exhaustive, such comprehensive words should be held to refer to financial aid of the same general character and purpose as that included in such preceding words. They should be construed to mean other financial aid for similar urgent and necessary purposes." Again: "The word need' is used in the same paragraph of the will as a noun and as such it is defined to mean 'A state requiring supply or relief; pressing occasion for something; urgent want; necessity; exigency.' It is also defined to mean 'The lack of anything desired or useful, as “He felt the need of a better education." The latter meaning is by lexicographers said to be its meaning in a milder sense. Its general and more commonly accepted meaning is stated in the first quoted definition, and also as Want of the means of subsistence, poverty; indigence; destitution.' it is plain and unmistakable that the testatrix intended the trust for the benefit of those in need who require shelter, necessaries of life and education, and not for those simply desiring something useful, and that the discretion vested in her trustees extends only to selecting such persons as to them. shall seem fit and proper among those in want, necessity, exigency, poverty, indigence and destitution." * * It is apparent that the applicant is not a person "in want, necessity, exigency, poverty, indigence or destitution.” I therefore, conclude that the proposed loan is not within the scope of the trust created by said ninth clause of the will of Mary S. Robinson. Dated November 29, 1915. EGBURT E. WOODBURY, TO BURTON C. MEIGHAM, Esq., 120 Broadway, New York City. MILITARY LAW, SECTIONS 220–223. A private in the National Guard, New York State, who was permarently injured while in the service of the State while serving at Gould Coupler Works, Depew, New York, where imminent danger existed of a riot, tumult or breach of the peace, is entitled to a pension under section 220 of the Military Law notwithstanding such soldier received pay and care for temporary disability for a couple of months based upon the same injury. INQUIRY Adjutant-General Stotesbury under date of November 15, 1915, asks to be advised whether one George Harvard Baker, formerly a private in the 74th Regiment, N. G., N. Y., who was injured while on strike duty at Gould Coupler Works, Depew, New York, and received care and medical attendance for two months immediately following such injury pursuant to the provisions of section 223'of the Military Law, can be allowed a pension under section 220 of such law after his acceptance of pay and care for such temporary disability. OPINION The claimant, George Harvard Baker, was injured while on strike duty at Depew, where imminent danger existed of a riot, tumult or breach of the peace, and was immediately taken to the Buffalo General Hospital where he received care and treatment from March 24, 1914 (date of injury), to May 14, 1914, a period of about two months. The charges for such treatment were paid by the State pursuant to the provisions of section 223 of the Military Law as temporary disability. The claimant now makes application for a pension under section 220 of such law claiming that the injury which he there sustained was not wholly cured and that "he has been totally or partially disabled from obtaining his subsistence by manual labor by reason of his injuries above described," and makes the application for the purpose of securing invalid pension from the date of such injuries. The question arises whether the acceptance of pay and care for temporary disability under the Military Law will bar him from pension based on the same injury. By section 223 of the Military Law it is provided that a member of the National Guard who shall be injured or wounded or contract any disease while performing any lawfully ordered duty which shall temporarily incapacitate him from pursuing his usual business or occupation, shall during the period of such incapacity receive the pay provided by the act and actual and necessary expenses for care and medical attendance, but that no claim shall be allowed under such section unless the claimant within thirty days after receiving the injury or contracting the disease upon which the claim is made notifies in writing the Adjutant-General of his intention of making such claim, and it is further provided there that: "Under this chapter no disability shall be considered temporary which continues for more than ninety days from the date of receiving the injury or of incurring or contracting the disease or disability, and pay and expenses for care and medical attendance for more than the said ninety days shall not be allowed." This section of the Military Law applies solely to temporary disability and a claimant might easily be mistaken during the first thirty days of the disability, within which time he is obliged to give the Adjutant-General written notice of his injury or sickness, and his intention to make a claim for pay and temporary relief, as to the duration of such disability, and an injury or sickness which might within such period of thirty days, or even the ninety days for which pay and temporary relief are allowable under the statute appear to be curable, might thereafter develop into a chronic or permanent disability, or into one which might continue for several years, thus rendering the guardsman totally or partially disabled in obtaining his daily subsistence, and that is precisely the condition which exists in reference to Mr. Baker. Under date of July 16, 1915, I rendered an opinion to the Adjutant-General where the question involved was whether the claimant in that case was entitled to compensation arising from temporary disability or to a pension for a permanent disability, and among other things it is therein stated: "An injury may appear to be temporary at the time of its occurrence, and compensation paid for ninety days. The continuance of the injury would result in the disability passing out of the temporary class." In that case it was not necessary to pass upon the question which is here presented, as no temporary relief had been granted, but the intimation is made that temporary relief might be granted and if subsequent developments proved that the same injury or disease had resulted in long continued or permanent disability a pension might also be granted to him during the continuance of the disability. Section 223 is a provision made for the temporary care of soldiers who have become sick or disabled, and is not to be considered or treated as temporary if the disability continues for over ninety days, and I take it that the Legislature did not intend to abandon or repudiate all responsibility for a sick or disabled soldier whose disability continues long after the temporary period has elapsed, simply because he availed himself of the privileges accorded by the Legislature to him during that time. Section 220 is a provision made by the State in consideration of the past services rendered by an active militiaman in which he became sick, wounded or disabled in the line of duty on account of the rendition of such services and the injury he sustained while in such service. It is a disability pension. Over a year and a half has elapsed since the injury happened and it is claimed that the disability which followed such injury still incapacitates him either partially or wholly from earning his living. While these two sections might have been drawn so that their provisions would be more clearly understood, still I think there can be no doubt that the Legislature intended that during the early acute stages of either injury or sickness the soldier should be taken care of and all medical attendance and expenses paid by the State, and if permanent disability followed which was the direct result of such sickness or injury he should be granted permanent relief as provided by section 220 as long as the same continued; but I do not think he can be granted a pension to take effect prior to the time that his temporary relief ceased. In other words, he cannot be allowed a pension for any of the time when he received temporary relief, and if at any time in the future he should recover the pension should be discontinued as stated in my former opinion. I therefore advise you that the application can be considered and if Mr. Baker is found entitled to a pension, as specified in section 220 of the Military Law, it should be granted notwith standing the fact that he received temporary relief for the same injury. Dated December 7, 1915. EGBURT E. WOODBURY, TO HON. LOUIS W. STOTESBURY, Adjutant-General, Albany, N. Y. |