
    Margaret Champion, App’lt, v. Elam Williams, Ex’r, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 18, 1891.)
    
    Will—Legacy—Power oe sale oe personal property.
    A testator, by Ms will, gave a watch to Ms daughter and money legacies to other legatees, and then gave the rest of his estate to his wife, in lieu of dower, “ to be used and enjoyed by her during the term of her natural life,” and after her decease to his daughter. Then followed a clause : “I hereby empower the executor of iny said will, if necessary, to sell so much of the personal estate as will satisfy the special legacies and debts that may be against my said estate.” Held, that it was not the intention of the testator that the personal property should be converted into money and the income be paid the wife during life; that the executor could sell only so much thereof as was necessary to the payment of the special legacies and debts, and that the remainder must remain under the wife’s control in its present form.
    Appeal from an order of the special term, confirming a report of the referee appointed with the approval of the surrogate to hear and determine the claim of the plaintiff, and also from the order denying plaintiff’s motion to set said report aside.
    The plaintiff was the widow of the testator. She presented two ■claims against the estate: one for $488.25, being for cash which she had delivered to the testator to deposit in her name in the savings bank, but which he deposited in his own name. The referee allowed this claim. The other claim was for $381.39, and was for sundry items of expenditure which the plaintiff had paid since the death of the testator. Of these items $163 were for undertaker’s and funeral expenses, including thirteen dollars for a headstone at the testator’s grave. Other items amounting to fifty-five dollars were payments made by her of the bills of the physicians who had attended the testator. The remaining items were mainly for expenses in carrying on business after the testator’s death. No part of the second bill was allowed.
    The referee found that the plaintiff had taken possession of seventy-two dollars of the plaintiff’s money; that she retained possession of his farming tools and stock worth $493, and that from a month before testator’s death in July, 1887, until December following she had carried on the manufacture of pill boxes in which her husband, the testator, had been engaged, and in so doing had appropriated the tools, materials, manufactured stock and proceeds of such business to the value and amount of $967.79; and that, therefore, she was not entitled to any recovery against the defendant, and he directed judgment dismissing the claim. Other facts appear in the opinion.
    
      JEugene Burlingame, for. app’lt; Herrick & Belehanty (John A. JDelelianiy, of counsel), for resp’t.
   Landon, J.

We think the plaintiff was entitled to recover for the amount of the savings bank deposit. The facts were not in dispute and the referee found them in her favor; no offset or defense was established. Her payments of the several accounts set forth in her second bill were probably made from the money and . proceeds of the property of her husband’s estate, and this bill was therefore properly disallowed. The referee erred in establishing claims against her as for the conversion of the personal property upon the testator’s farm and the personal property and accounts connected with the pill box manufactory, for the reason that under her husband’s will she was rightfully in the possession of the property, and the executor had not shown any right to deprive her of that possession. The testator by his will gave his gold watch -to his daughter and money legacies amounting to $600 to other legatees, and then provided:

Fifth. I give, devise and bequeath all the rest, residue and remainder of all my estate both real and personal to my wife Margaret Champion, to be used and enjoyed by her during the term of her natural life, and to be taken and accepted by her in lieu of dower, and from and immediately after her decease I give and devise the same to my daughter Eugenia.
Sixth. I hereby empower the executor of my said will, if necessary, to sell so much of the personal estate as will satisfy the special legacies and debts that may be against my said estate.”

It does not appear that there were any debts other than those paid by the plaintiff, and the one for which she seeks recovery in this proceeding, and the evidence tends to show affirmatively that there were none other. It appears that the executor has made an inventory showing cash assets, other than any of the items here in controversy, more than sufficient to pay all the money legacies and expenses of administration, and he offers no evidence to show any lack of assets in his hands for the purpose.

It follows, therefore, that the property in the plaintiff’s possession is part of that rest and residue which the testator devised and bequeathed to her “ to be used and enjoyed by her during her natural life.”

The executor urges that the personal property should be sold and the proceeds invested, the income to be paid to the plaintiff for life, and the principal to the daughter upon the plaintiff’s death. But the testator himself placed a limit both upon the power of the executor to sell, and also upon the amount he might sell, by the words : “I hereby empower the executor of my said

estate, if necessary, to sell so much of the personal estate as will satisfy the special legacies and debts.” If there is no necessity, there is no power; if the power should come into existence then its limit is fixed. The testator qualified his otherwise absolute devise and bequest of the residue of his estate to the plaintiff by the words, to be used and enjoyed by her during her natural life.” Of course what remains after the payment of the debts, legacies and expenses of administration forms the residue. Since the sale must be restricted to the satisfaction of these three items, it follows that no part of the residue can be sold.

This intent of the testator harmonizes with the situation. He gave Ms widow real estate and personal property adapted for use and enjoyment together, as he himself had used the two kinds of property. Naturally he did not wish any more' of the one kind to be separated from the other than necessity would require/ Where the will indicates the manner in which the personal property is to be used and enjoyed by the life tenant, the law will not prescribe a different manner.

The defense rests upon the executor’s supposed right to take possession of all the personal property and sell it He can under the peculiar language of this will only take what is necessary, and since he has not shown the necessity, he has not shown that the plaintiff violates his right by using and enjoying what her husband bequeathed her.

Besides he has made no demand, proper or otherwise, for any of this property.

The order confirming the referee’s report should be reversed, and the motion to set it aside granted, with costs of this appeal to the plaintiff against the executor as such, and a new trial granted, referee discharged, costs to abide the event

Mayham, J., concurs; Learned, P. J., takes no part.  