
    Chautauqua County.
    Hon. DANIEL SHERMAN, Surrogate.
    September, 1890.
    Matter of Gilbert.
    
      In the matter of the judicial settlement of the account of Edwin S. Gilbert and Milo O. Gilbert, executors of the will of Oronso S. Gilbert; deceased.
    
    By his will testator gave to his wife all his property, to have, hold, possess, use and control the same for her own personal benefit during her life, and at her death all that might then remain to seven specified children. The executors were given full power and authority to sell and convey any portion of the real estate, on condition that such sale be approved of and concurred in by testator’s wife. The will also provided that the appointment of appraisers at testator’s death should not be required, that the whole management of the property should, immediately vest in the wife, and be subject to her absolute control during her life "and that she should not be subject to any accounting therefor. Held, that the wife took only a life interest and use of the property of testator, to hold the same in trust for her necessary support and maintenance; that the provisions declaring the estate not subject to an accounting were nugatory and void, as contrary to law and to the whole text of the will.
    Judicial settlement of the account of the executors of the will of Oronso S. Gilbert, deceased.
    Norman M. Allen, for Helena M. Gilbert, George C. Gilbert and Lena W. Gilbert.
    T. A. Case and J. E. Hazard, for Edwin S. Gilbert, Milo O. Gilbert, James A. Gilbert, Joseph C. Gilbert and Josephine Bentlet.
   The Surrogate.

The testator died April 21,1888, leaving Helena L. Gilbert, his widow, Edwin S. Gilbert, Milo 0. Gilbert, James A. Gilbert, and Joseph C. Gilbert, sons, and Josephine Bentley, daughter of his former deceased wife, and George C. Gilbert, son, of full aged, and Lena W. Gilbert, daughter, aged 15 years, children by his said widow, Helena, him surviving. He died seised of unencumbered real estate, consisting of several improved farms containing 330 acres, in Chautauqua county, of the value of $8,000, and owning personal property of the value of $5,500, and owing debts not exceeding $2,000. He made his will, dated March 31, 1888, probated May 28, same year, and appointed his two eldest sons by his first wife, said Edwin and Milo, executors thereof, of which will the following is a copy, not including the formal parts: First. After all my lawful debts are paid and discharged, I give, devise, and bequeath to my wife, Helena L. Gilbert, all my property, both real and personal, to have, hold, possess, use, and control for her own personal benefit during the term of her natural life. Second. At the event of the decease of my said wife, Helena, I give, devise, and bequeath all that may then remain of my said estate to my following named children, share and share alike, to wit: Edwin S. Gilbert, Milo 0. Gilbert, James A. Gilbert, Josephine Bentley, Joseph C. Gilbert, George C. Gilbert, and Lena W. Gilbert. Third. I hereby give and grant to my executors, hereinafter named, full power and authority to sell and convey any portion of the. real estate of which I may die seised: provided, however, that such sale shall first be approved and concurred in by my said wife, Helena, and shall be deemed by my said executors for the best interest of my said estate. Fourth. Nothing herein contained shall require the appointment of any appraisers of my said estate at the event of my decease. But my whole property, its management and use, shall immediately ves't in my said wife, and be subject to her absolute control during her lifetime, and she shall not be subject to any accounting therefor.”

It is claimed by the learned counsel for said Helena L. Gilbert, widow, George C. Gilbert, son, and by the special guardian and counsel for said Lena, minor, being children of the testator by his said second wife, that such will gives to the widow the absolute title to all the said real and personal estate, after payment of debts, funeral expenses, and expenses of administration, and that the use and possession of same was not limited to her life, and cite the following authorities: Campbell v. Beaumont, 91 N. Y. 465; Van Horne v. Campbell, 100 N. Y. 287; Clarke v. Leupp, 88 N. Y. 228; Roseboom v. Roseboom, 81 N. Y. 356; Griswold v. Warner, 51 Hun, 12; Leggett v. Firth, 53 Hun, 152. It is claimed by the counsel for the executors and other children by the first wife of the testator, that the testator intended to and did by his will give to his widow only the use of his property, real and personal, after paying debts, funeral expenses, and expenses of administration, during her natual life, for her necessary support and maintenance, and at her death the remainder of his estate to his seven children, legatees named in his will, share and share alike, and cite the following authorities: Simpson v. French, 6 Dem. 108; Matter of Verplanck, 91 N. Y. 439; Matter of Westcott, 16 St. Rep. 286; Wager v. Wager, 96 N. Y. 164; Taggart v. Murray, 53 N. Y. 233; Van Vechten v. Keator, 63 N. Y. 52; McKeown v. Officer, 6 N. Y. Supp. 201; Matter of Fuller, 16 Civ. Proc. Rep. 412; Black v. Williams, 51 Hun, 280; Terry v. Wiggins, 47 N. Y. 512; Greyston v. Clark, 41 Hun, 125; Rose v. Hatch, 55 Hun, 457. While these authorities illustrate the general well-established principles governing the construction of wills, not one of them fully covers the exceptional state of facts and circumstances to be considered in arriving at the real intention of the testator by this remarkable instrument. He made his will only a few days prior to his death. He left five children by his first wife, and two by his last. His family relations had always been pleasant, there being apparently no petty jealousy existing between his two sets of children, all of whom were well brought up and respectable. He had apparently no partiality for any of them. By their aid he had accumulated a handsome property. By the first paragraph of his will he gave the use of all his property to his wife during her life, an ample provision for her, and emphasized his intention by saying that such use was “ for her own personal benefit during the term of her natural life.” By the second paragraph of his will he gave all that might remain of his estate at her death to his seven children, naming each, share and share alike. By the third clause of his will he gave to his two eldest sons, executors, full authority to sell and convey his real estate, with the concurrence of his widow, and convert the same into money as might be deemed by them to be for the best interest of the said estate. The extraordinary provisions of his will are in the fourth clause, which provides that no appraisement of his property shall be required at his death; but that his whole property, its management and use, shall immediately vest in his said wife and be subject to her absolute control during her lifetime, and that she should not be subject to any accounting therefor.

1 have ordered an appraisal of the personal property, which has been made and filed, and hold that the clause declaring that she shall not be subject to any accounting for the property of her deceased husband is nugatory and void, as against the policy of the law and contrary to the whole context of the will. The case of Smith v. Bell, 6 Pet. 68, in which the very learned Chief Justice Marshall, of the United States Supreme Court, writes the opinion, appears to cover the whole line of legal controversy and argument in this case, and such authority is approved by our own Court of Appeals in the very recent case of Crozier v. Bray, 120 N. Y. 366. The case quoted and decided by the United States Supreme Court came up from the seventh circuit and district court of Bast Tennessee; the property involved being goods and chattels consisting of a negro woman and her four children, all slaves. The will gave to testator’s wife all his personal estate “ to and for her own use, benefit and disposal, absolutely; the remainder of the said estate after her decease, to be for the use of the said Jesse Goodwin” son of the testator. The court held that the wife took an estate only during her life, and the son took a vested remainder; yet in that case the words “ during the term of her natural life ” and “ during her lifetime ” appearing in the first and fourth clauses of this will, were not in that will, but the court held that the remainder of the said estate- after the decease of his wife, to be for the use of the said Jesse Goodwin were equivalent thereto. I direct decree holding that the widow in this case takes only a life interest and use of the personal property of her deceased husband, to hold same in trust for her necessary support and maintenance during life; and it appearing that this is only an intermediate accounting, and that the time for the presentation of claims against the estate has not yet expired, and that there are debts due the estate not paid, and all parties interested having appeared personally or by attorney, and consenting, the further proceedings herein are adjourned to November 26, 1890, and all questions relating to commissions and costs of the respective parties are reserved until that date.  