Surrogate's Court, Westchester County, December, 1921. [Vol. 117. support may be made in a separation agreement with the wife. The principle of preferential payment of a gift to children is sustained in Matter of Obst, 115 Misc. Rep. 711; Matter of Mould, 117 id. 1. Because of such an agreement, he is not relieved of that fundamental obligation. Michaels v. Flach, 114 Misc. Rep. 225, 232. The obligation rests upon father to support his own infant children even though they have an estate of their own. Goodman v. Atexander, 165 N. Y. 289. the for the It will be recalled that in the separation agreement, the trust is for the "support and maintenance of the wife and the children, while the trust in the will is for the "use and education" of the children. While "use" is broad enough to cover support and main tenance, we must give effect to the gift in trust for the education of the children. In Petrie v. Petrie, supra, it was held that a legacy for education, like one maintenance, must be preferred to general legacies, and I assume, if other provision is not made for such purpose. As to the trust for the education of children, it cannot be argued that the prior settlement made any provision in this regard. Webster says, support and maintenance are synonymous, and to support and maintain a person is to give means of liveli hood to him. It implies existence and the continuance of bodily life, and provides for bodily care. One may be supported and maintained, but not educated. Ed"Ication is instruction and is not necessary for physical ́existence, and to require one to support and maintain a person does not require one to educate him. significant that the will was made July 6, 1916, nineteen days after the making of the settlement agree ment. The will recites the agreement in part. By its very terms, it shows every evidence of the testator's great desire and intent to provide for his children It is It Misc.] Surrogate's Court, Westchester County, December, 1921. would appear that he did not leave at death as much property as he apparently believed he had in 1916. The evidence adduced shows his earning capacity at that time to be large. It may be inferred that the decedent, realizing he had not provided for the education of the children, intended by his last will and testament to do so. The law of the state demands the education of its citizens, and society today is demanding the higher education of all the young of the state. A surrogate is empowered out of either income or principal of an infant's property to authorize payments for the support or education of infants (Surrogate's Court Act, 194, former Code Civ. Pro. § 2664), and so the Supreme Court may take from the corpus of a fund held in trust for infants, moneys to provide for their education. The court will take judicial notice of the cost of higher education. Education is the keystone of our civilization. This legacy provides the only moneys in so far as the father is concerned, for his children to obtain a college education. To hold that it must abate pro rata with the legacies which are ones of mere bounty, would be against public policy. The gift in the instant case is for education, and the principle of "otherwise provided for cannot be applied, because the trust settlement upon the wife and the children is clearly for their support and maintenance, and not for education. Education is not within the ruling terms of the trust settlement. In one place the wife is made to promise and agree that she will support and educate them, but, the husband cannot rid himself of the obligation which the state casts upon him to support and maintain and educate his own children. No provision being otherwise made for the education of the children, we are without this. rule of the law as laid down in the cases cited. The testimony adduced on the hearing also indicates Surrogate's Court, Westchester County, December, 1921. [Vol. 117. support may be made in a separation agreement with the wife. The principle of preferential payment of a gift to children is sustained in Matter of Obst, 115 Misc. Rep. 711; Matter of Mould, 117 id. 1. Because of such an agreement, he is not relieved of that fundamental obligation. Michaels v. Flach, 114 Misc. Rep. 225, 232. The obligation rests upon father to support his own infant children even though they have an estate of their own. Goodman v. Atexander, 165 N. Y. 289. the of for the It will be recalled that in the separation agreement, the trust is for the " support and maintenance the wife and the children, while the trust in the will is for the "use and education" of the children. While "use" is broad enough to cover support and main tenance, we must give effect to the gift in trust for the education of the children. In Petrie v. Petrie, supra, it was held that a legacy for education, like one maintenance, must be preferred to general legacies, and I assume, if other provision is not made for such purpose. As to the trust for the education of children, it cannot be argued that the prior settlement made any provision in this regard. Webster says, support and maintenance are synonymous, and to sup port and maintain a person is to give means of livelihood to him. It implies existence and the continuance of bodily life, and provides for bodily care. One may be supported and maintained, but not educated. Education is instruction and is not necessary for physical existence, and to require one to support and maintain a person does not require one to educate him. It is significant that the will was made July 6, 1916, nineteen days after the making of the settlement agree ment. The will recites the agreement in part. By its very terms, it shows every evidence of the testator's great desire and intent to provide for his children It Misc.] Surrogate's Court, Westchester County, December, 1921. would appear that he did not leave at death as much property as he apparently believed he had in 1916. The evidence adduced shows his earning capacity at that time to be large. It may be inferred that the decedent, realizing he had not provided for the education of the children, intended by his last will and testament to do so. The law of the state demands the education of its citizens, and society today is demanding the higher education of all the young of the state. A surrogate is empowered out of either income or principal of an infant's property to authorize payments for the support or education of infants (Surrogate's Court Act, 194, former Code Civ. Pro. § 2664), and so the Supreme Court may take from the corpus of a fund held in trust for infants, moneys to provide for their education. The court will take judicial notice of the cost of higher education. Education is the keystone of our civilization. This legacy provides the only moneys in so far as the father is concerned, for his children to obtain a college education. To hold that it must abate pro rata with the legacies which are ones of mere bounty, would be against public policy. The gift in the instant case is for education, and the principle of "otherwise provided for "cannot be applied, because the trust settlement upon the wife and the children is clearly for their support and maintenance, and not for education. Education is not within the ruling terms of the trust settlement. one place the wife is made to promise and agree that she will support and educate them, but, the husband cannot rid himself of the obligation which the state casts upon him to support and maintain and educate his own children. No provision being otherwise made for the education of the children, we are without this rule of the law as laid down in the cases cited. In The testimony adduced on the hearing also indicates Surrogate's Court, Westchester County, December, 1921. [Vol. 117. support may be made in a separation agreement with the wife. The principle of preferential payment of a gift to children is sustained in Matter of Obst, 115 Misc. Rep. 711; Matter of Mould, 117 id. 1. Because of such an agreement, he is not relieved of that fundamental obligation. Michaels v. Flach, 114 Misc. Rep. 225, 232. The obligation rests upon the father to support his own infant children even though they have an estate of their own. Goodman v. Atexander, 165 N. Y. 289. It will be recalled that in the separation agreement, the trust is for the "support and maintenance" of the wife and the children, while the trust in the will is for the "use and education" of the children. While "use" is broad enough to cover support and maintenance, we must give effect to the gift in trust for the education of the children. In Petrie v. Petrie, supra, it was held that a legacy for education, like one for maintenance, must be preferred to general legacies, and I assume, if other provision is not made for such purpose. As to the trust for the education of the children, it cannot be argued that the prior settlement made any provision in this regard. Webster says, support and maintenance are synonymous, and to support and maintain a person is to give means of livelihood to him. It implies existence and the continuance of bodily life, and provides for bodily care. One may be supported and maintained, but not educated. Education is instruction and is not necessary for physical existence, and to require one to support and maintain a person does not require one to educate him. It is significant that the will was made July 6, 1916, nineteen days after the making of the settlement agreement. The will recites the agreement in part. By its very terms, it shows every evidence of the testator's great desire and intent to provide for his children. It |