
    (1 Misc. Rep. 27.)
    In re BEACH’S ESTATE.
    (Surrogate’s Court, Cattaraugus County.
    September, 1892.)
    1. Will—Construction—Life Estate.
    Testator devised to his wife “all o£ my personal property that I shall be possessed of at the time of my death, and all of my household goods, and the use of my real estate during her natural life. But I will that she shall keep the buildings on said real estate in good repair, and pay all taxes on the same. (2) To my daughter-, the organ that is now at my house, after the death of my wife, I give. (3) To my son B., the sum of $500. (4) To my son W., the sum of $500.” The will directed the residue to be divided equally among his six children. The estate consisted of real estate worth $6,000, and personalty worth $2,000. The annual rental value of the real estate was $350. Held, that the wife took a life estate, only, in the personal property.
    2. Same.
    In such case the clause, “after the death of my wife,” refers to the bequests to the sons, and not to the bequest to the daughter, and the latter is entitled to the immediate .possession of the organ.
    "3. Settlement of Account—Credits—Tombstone.
    In such case $400 for a tombstone is reasonable, and will he allowed the executor in his account; where it appears that he, in good faith, after consulting with several legatees, entered into a written contract therefor, that it is nearly ready for delivery, and that no one but the widow ob: jects thereto.
    4. Same—Joint Note of Deceased and Executor--Payment.
    In the settlement of such executor’s account, it appeared that a note executed by him and deceased was barred by the statute of limitations, except for partial payments made thereon; that such payments were made by the executor with money furnished by deceased for that purpose; that the note was given to aid the executor, who was testator’s son, in purchasing a team; and that testator designed paying the same himself. Held, that the executor was entitled to credit for the amount paid to cancel the note.
    ■5. Same—Clerical Services for Executor.
    An executor is not entitled to credit for sums paid for clerical services rendered him in his capacity as executor.
    •6. Same—Loss on Sale of Personal Property.
    On settlement of such account it appeared that the executor sold and delivered, on credit, certain personal property of the estate to an irresponsible party, who was indebted to him personally, and who failed to furnish security as required by the terms of sale; that the executor took a mortgage from the purchaser on such property to secure his own debt, and allowed the purchaser to retain and use it for some time; and that his mortgage was afterwards released, and the property taken hack, and resold by the executor at a loss. Held, that the executor must account for the amount it sold for at the first sale.
    Proceeding for the judicial settlement of the account of the executor of the will of Isaac H. Beach, deceased.
    A. & G-. E. Spring, for executor.
    William H. Ticknor, for contestant.
   DAVIE, S.

This is a proceeding for the judicial settlement of the accounts of the executor of the will of Isaac H. Beach, who died April 23, 1891, leaving, him surviving, his widow and six children, and real estate of the value of $6,000, and personal property to the amount of about $2,000. Such settlement necessitates a construction of certain portions of the will, and the widow files objections to ‘ various items of the account. The will is very inartistically drawn, and it is no easy task to determine the actual intent of the testator therefrom. The disposing portion of said will is in the following form:

“First, after all my lawful debts are paid and discharged, I give and bequeath to my wife. Hannah M. Beach, all of my nersonal property that I shall he possessed of at the time of my death, and all of my household goods, and the use of my real estate during her natural life. But I will that she shall keep the buildings on said real estate In good repair, and pay all taxes on the same. (2) To my daughter Mabel L. Beach, the organ that is now at my ' house, after the death of my wife, I give. (3) To my son Benjamin O. Beach, the sum of $500. (4) To my son Willey E. Beach, the sum of $500. (5) The ■balance of all my property, of every kind, name, and nature, I will shall be equally divided, to share and share alike, between all of my six children, namely, Benjamin C. Beach, Willey 15. Beach, Rosetta E. Ryder, Clara E. ■Cagwin, Ella L. Vedder, Mabel L. Beach.”

The questions raised are—First, does the widow take the personal estate absolutely, or simply a life estate therein? and, second, when are the two $500 legacies payable?

Various rules of construction have been formulated, but the chief solicitude of courts, in construing wills, is to ascertain the actual intent of the testator, and carry the same into effect as far as possible. The testator in this case was worth about $1,000 at the time of his marriage with the contestant. They lived together as husband and wife for many years, and the balance of his estate was accumulated by their joint industry and frugality. Contestant is now 57 years of age. Hence it would seem that the testator would very naturally desire, in the first place, to make some certain and ample provision for the maintenance of his wife during the time she might survive him, but to do so in such a manner as not to jeopardize the rights of his children. How could such a result be better accomplished than by giving the wife the use of the entire estate during her life, with provisions for its equitable distribution among his children after her death? The evidence shows that the annual rental value of the real estate is $350. The income from the personal estate would increase this amount somewhat. This would seem to be a very moderate provision for the maintenance of the widow. Such a disposition of the personal estate, however, would seem to meet the approval of a careful, prudent man, like testator, rather than an absolute gift of the same to her, thereby ■endangering the rights of the children through the possible improvidence or lack of prudence incident to the advanced age of the widow. Whether the provisions of this will are susceptible of the ■construction suggested depends entirely upon the use made of the term “during her natural life,”—whether such term is held to relate to the entire preceding sentence, or simply to the single clause, “and the use of my real estate.” Had the words “the use of” been omitted from such clause, the ordinary interpretation of the entire sentence would make the words of limitation “during her natural life” applicable to the entire bequest. Areson v. Areson, 3 Denio, 458; Van Allen v. Mooers, 5 Barb. 110; Carpenter v. Carpenter, 2 Dem. Sur. 534. It is urged on the part of the contestant that the words “the use of” coupled with the disposition of the real estate, and not with that of the personal property, indicates a design on the part of the testator to convey a greater estate in the latter than "in the former; that, had he intended to limit the bequest of the personal property in the same manner as the real estate, he would have used the same words of limitation, “the use of,” in both instances; that this difference in phraseology takes the case out of the operation of the rule of interpretation above cited. While fully recognizing the force of this suggestion, yet, in view of all the attendant circumstances, the extent of the estate, the habits and mode of life of the contestant, and the character of the other bequests in said will, I am of the opinion, and must hold, that it was the intention of the testator to give to the widow simply a life interest in said personal estate.

The next question relates to the bequest of the organ to the daughter Mabel. The preceding portions of the will dispose, in terms, of “all the personal property and household furniture.” This would, of course, carry the organ, were it not for the subsequent specific bequest thereof to the daughter. The two provisions of the will are absolutely irreconcilable, so far as the disposition of the organ is concerned. This being the case, the latter provision- must prevail. Van Nostrand v. Moore, 52 N. Y. 12; Chrystie v. Phyfe, 19 N. Y. 345. Consequently the daughter takes the organ absolutely, and is entitled to the immediate possession thereof.

The conclusion already arrived at necessarily determines the remaining question, as to the time of payment of the two $500 legacies. The time of payment is dependent entirely upon the use made of the expression, “after the death of my wife.” It is urged on part' of these legatees that this clause should be read in connection with the bequest of the organ, but I cannot adopt such view, but must hold that such clause is to be read in connection with, and as a part of, each of the following bequests. There is nothing in the will or surrounding circumstances indicating an intent on testator’s part to make these legacies immediately payable out of the real estate; and, having given the widow the use of the personal estate during her lifetime, it could not be available for payment of legacies or distribution until the termination of her life estate. In my judgment the only reasonable construction which can be given to this will is to hold that the widow takes a life estate in all the personal property, except the organ; that the organ passes to the daughter absolutely; that upon the death of the widow the two $500 legacies become payable, and the residuum subject to distribution.

The account filed shows that the executor has entered into an agreement, in writing, for the expenditure of $400 for a monument to be placed at the grave of the testator. The widow objects to this expenditure as unreasonable and excessive. Of course, no arbitrary rule has been or can be laid down, establishing the question of reasonableness of funeral expenses. Each case must-be determined from its own particular circumstances. A reasonable expenditure for a tombstone is regarded as a legitimate item of funeral expenses to be allowed to the executor upon his accounting. Ferrin v. Myrick, 41 N. Y. 315; Tickel v. Quinn, 1 Dem. Sur. 425. So the only question in this case is whether the sum named was reasonable or not. In one case it ivas held that an expenditure of $500 for such purpose, where the estate did not exceed $8,000, was unreasonable, and was not allowed against the heirs. Owens v. Bloomer, 14 Hun, 296. In case of an estate of $2,600, it was held that an expenditure of $250 was not unreasonable. In re Erlacher, 3 Redf. Sur. 8. In case of an estate of $1,200, that $150 was a reasonable expenditure. Emans v. Hickman, 12 Hun, 425. While the expenditure made by the executor in this case would seem to reach the limit, yet, in consideration of the fact that the estate amounts to $8,000; that the rights of creditors are not impaired by the expenditure; that the executor consulted with several of the legatees before making the contract, and no objection is made to such expenditure by any one but the widow; that the executor, as such, evidently in good faith, has contracted for the monument; that the monument itself has been prepared, and is now nearly ready for delivery,—I am unable to see how the interests of this estate are to be subserved by holding that this expenditure was unwarranted. In re Laird, 42 Hun, 136.

Contestant also objects to the payment of a certain note by the executor to one Í). P. Howes, to the amount of $152.65, upon the grounds—Hirst, that the right of action thereon against the testator was barred by the statute of limitations before his death; and, second, that the debt for which said note Avas originally given was that of the executor himself. The contestant called and examined the executor as a witness, and established the fact by him that such note was Originally given for his individual benefit, and that the indorsements thereon were for moneys which he had himself paid. The note itself bears date August 8, 1881, and the last indorsement thereon is of the date of March 28, 1890; so that, if said note was not outlawed, it is in consequence of the partial payments made thereon. This state of facts, unexplained, would show such payment by the executor to have been unauthorized. A partial payment by one of the makers of this note, Avithout the consent or authority of the other, would not prevent the statute running against the one not paying. How, the executor would not have been a competent witness, in the first instance, to testify to the transaction which took place between himself and deceased regarding such payment, or the original inception of the note, (section 829, Code Civil Proc.;) but the contestant, having examined the executor as a witness, and proved by him a sufficient portion of said transactions to establish his individual liability, removed such disability, permitting him to testify to the entire transaction for the purpose of relieving himself of such disability, (Nay v. Curley, 113 N. Y. 575, 21 N. E. Rep. 698; Davis v. Gallagher, 55 Hun, 593, 9 N. Y. Supp. 11.) The further examination of the executor shows, not only that the money paid and indorsed on the note was furnished by the testator with the express instruction that it should be so used, but also that, in the making of the note, originally, testator gave the proceeds thereof to the executor to aid him in buying a team; that testator in fact gave the note to the son, and designed to pay the same himself. These facts justify the payment of the note out of the estate.

Contestant also objects to the payment of the item of $24 to Mr. Whiting. A portion of this sum is a proper charge against the estate. The appraiser’s fees for two days at $3 per day is a proper and reasonable charge. The witness fees of Mr. Whiting and Avife, from their residence to Eranklinvilie, to attend the probate of the will of deceased, amount to $3.76, which is . also a proper charge. The balance of said item appears to be for services purely clerical in their character, and such as the executor could and should have performed himself. If the executor saw fit to employ another to transact for him the usual and ordinary duties of his trust, -and for which the commissions were designed as full compensation, the expense of procuring such services becomes his own debt, and cannot be charged to the estate. Hall v. Campbell, 1 Dem. Sur. 415; In re Carman, 3 Redf. Sur. 46; Ward v. Ford, 4 Redf. Sur. 34.

The remaining question arises out of the following facts: On the 10th day of December, 1891, the executor sold certain personal property belonging to the estate at public auction. The terms of the sale were cash, or good, indorsed paper running 10 months. At the sale certain property was sold to one Eobinson; among other things, one horse, for $41, and one mowing machine, for $28. The executor himself bid off one spring wagon for $38, and on the same day sold it to Eobinson. On the day after the sale, the executor prepared a' note for the amount of Bobinson’s purchase, and requested him to sign it, and furnish an indorser. Eobinson did not do so. A short time thereafter the executor again presented the note to Eobinson, who then refused to furnish an indorser. At the same time Eobinson was indebted to the executor, personally, to the amount of $125; and on December 23, 1891, the executor took a chattel mortgage upon this property, which Eobinson had so purchased, to secure his own individual debt. After Eobinson had refused to give the indorsed note the executor sold his mortgage and claim thereby secured to one Dake. Nothing further appears to have been done in this matter until the executor was cited to show cause why he should not judicially settle his accounts. Thereupon the executor procured Dake to satisfy said mortgage, and to take another upon Bobinson's crops, and thereupon took the property back from Eobinson, made another public auction, and sold the horse thereat for $25, the mowing machine for $12, and the spring wagon for $28.35, or $41.65 less than the same property sold for at the first sale; and contestant urges that the executor should be charged with the deficiency. If the executor, immediately upon the refusal of Eobinson to give the indorsed note, had reclaimed and resold the property, he could not have been subject to the imputation of bad faith, nor held accountable for any deficiency. But permitting said property to remain in Bobinson’s possession until the month of June, 1892; allowing him to use the same, thereby diminishing its value; knowing all the time that Eobinson was irresponsible, yet holding a chattel mortgage upon this identical property to secure his own debt; doing nothing- to enforce collection of the claim, or to recover said property,—presents an entirely different phase. An executor is bound to exercise active diligence in the management of the estate, and, if loss occurs through his negligence, he becomes personally liable as for a devastavit. Harrington v. Keteltas, 92 N. Y. 40; Hasbrouck v. Hasbrouck, 27 N. Y. 182. In this case the executor should account for the entire amount said property sold for at the first sale. The account filed should be modified in the particulars suggested, and a decree entered judicially settling the same as so modified.  