
    JOSIAH S. SMITH and others, Plaintiffs, v. JACOB VAN NOSTRAND, Defendant.
    
      Personal property—bequest of, to one for life—when remainder oner is void,— Gift for life—specific—residuary.
    
    Where a testator, by his will, bequeathed “unto my beloved wife, Catharine, the sum of $1,650 in lieu of dower in my real estate, for her support during her natural life, or as long as she remains'my widow, then her said dower shall be transferred to my three children;” held, that the widow took the absolute title to the money, and that the bequest over was void.
    
      Bapalye v. Bapalye (27 Barb., 610) followed.
    A gift for life of things, qua, ipso usu consumuntur, if specific, is a gift of the property, but if residuary, then the things must be sold, and the interest of the sum arising therefrom paid to the legatee for life.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.
    The only question presented by this appeal was as to the proper construction to be given to the following clause, contained in the will of Garret I. Smith, deceased, viz.: “ Eirst, I give and bequeath unto my beloved wife Catharine, the sum of one thousand six Hundred and fifty dollars in lieu of dower in my real estate, for her support during her natural life or as long as she remains my widow, then her said dower shall be transferred to my three children, hereafter mentioned. Fifty dollars of the above named sum shall be paid her as soon as practicable after my decease, and the remainder on or about six months after.”
    
      Halbert da Eckerson, for the plaintiffs.
    
      iS. It. Ten'Eyck, for the defendant.
   Mullin, P. J.:

Garret I. Smith died on or about the 1st January, 1866, leaving a last will, wherein and whereby he gave to his widow $1,650, in lieu of dower in his real estate, for her support during her natural life, or as long as she remained his widow; then her dower should be transferred to his three children. Fifty dollars of the said sum were to be paid to her as soon as practicable after his decease, and the remainder in about six months. He also gave such articles of furniture in his house as she should choose, with permission to dispose of it by will to whom she chose. He also gave her the use of his dwelling-house for six months after his decease, and necessary provisions for her support and comfort, to lie provided out of his estate.

The widow received from the estate of her husband the $1,650 bequeathed to her, and she invested the greater part of it in bonds of the United States, which she kept during her life. She died about 15th October, 1869. The defendant obtained possession of said bonds after the death of the widow, and had part of the same in his possession when this action was brought. The plaintiffs are the sons of Garret I. Smith, the testator, to whom, by his will, the dower of said widow was to be transferred on her death. They bring this action to recover the said $1,650, as legatees thereof under the will of their father. The complaint sets forth the facts above stated.

The defendant in his answer alleges that the plaintiff had no interest in the aforesaid sum of $1,650, but insists that, by the will of said Garret I. Smith, said sum was given to her absolutely. That during her life she invested the sum of $1,500 in bonds of the United States; that she used $500 of said $1,500 during hei life, together with interest on the whole of said sum; • that plaintiffs received $200 of said sum of $1,650; that at the death of the widow there remained of said sum $800, the greater part of which was owing for her support and maintenance. The answer further alleged, that on the 24th February, 1869, said widow made a last will, by which she bequeathed to her niece, Christina Van Hostrand, all property left by her, and appointed the defendant executor oí said will. On or about the 16th of April, 1870, said will was duly proved before the surrogate of Bergen county, Hew Jersey, and letters testamentary duly issued to the defendant. That defendant received as executor $916.17, assets belonging to the said estate; that he applied all of said sum, except $260.82, to pay for the support of said testatrix’s funeral expenses and the expenses of administrating said estate, and the said sum of $260.82 he paid over to the legatee named in her will. The defendant denies that he was the custodian of said bonds, or that the plaintiffs ever demanded the same of him.

On the trial of the action at the Seneca Circuit, the plaintiffs proved the will of said Garret I. Smith. Thereupon, the defendant’s counsel moved that the plaintiffs be nonsuited, on the ground that the complaint did not state a cause of action, for the following reasons:

1st. By the will the widow was vested with the absolute title and ownership of the money bequeathed to her by said will.

2d. That if the widow took but a life estate in the money bequeathed to her by said will, yet, as it was personal property, upon her death it would go back into the hands of the executors named in said will, to be by them distributed as directed by the will, and they are the only parties that can maintain an action to recover said moneys.

The court granted the motion and nonsuited the plaintiffs; to which ruling and decision plaintiffs’ counsel excepted. The court ordered the exceptions to be heard in the first instance at the General Term.

It is well settled that a gift for life of things, quee ipso usu consumuntur, as corn or wine, if specific, is a gift of the property, but if residuary, the things must be sold, and the interest of the produce paid to the legatee for life. It was held in Covenhoven v. Shuler that when there is a general bequest of a residue for life, with remainder over, although it includes things which are and which are not such as are consumed in the use, as well as other property, the whole must be sold and converted into money by the executor, and the proceeds must be invested in permanent securities, and the interest or income only is to be paid to the legatee for life. Indeed the general rule is, that where there is a bequest of the whole of the ' testator’s personal estate, or of the residue thereof after the payment of debts and legacies, to one person for life, with the remainder over to others after the termination of the life estate therein, the whole must be converted into money and invested in permanent securities by the executor, and the income paid over to the person entitled to the life estate. When the bequest to the legatee for life is specific, the legatee in remainder is not entitled to have the property converted, notwithstanding, by reason of its being a decreasing fund, the legacies over may altogether fail.

The legacy to the wife was a general, and not a specific legacy, and, being payable out of the estate after the debts, specific legacies and expenses of administration were paid, it was a residuary legacy; f and money, as is known of all men, is a species of property that is consumed in the use.

These fules of law being established, we may now enter upon the construction of the clause of the will which gave the legacy to the widow and the plaintiffs. It is manifest by the bequest of the $1,650 to the plaintiffs, on the death of the widow, that it was not the intention of the testator to vest the title to the fund absolutely in the wife, and if she got such a title, it is in defiance of his intention. It is said by Emott, J., in Rapalye v. Rcupalye, that when there is a specific bequest for life of chattels, or the use of chattels, which are consumed in the use, the better opinion would seem to be, that a bequest over is void, and that the person to whom they are given for life takes an absolute interest. The legacy in this case, not being a specific one, is not strictly within the principle stated by the learned judge, but it seems to me it is so nearly being specific, that the wife should be held to have taken an absolute title to it, and hence the bequest over is void.

The will required the executor to pay over the money within six mouths to the wife; it was intended to be used for her support; the income of the legacy would have been so trifling as to be of no value to her.

Hothing but the use of the fund could be of any appreciable value to her. The will would admit of the construction that the widow should take the fund and use so much of it as was necessary for her support during life, and the plaintiff be entitled to what should then remain of it. This, I think, would give effect fully to the intention of the testator, and to all the clauses of the will, but I do not find any case authorizing such a construction. The judgment is affirmed.

Judgment affirmed. 
      
       Dayton on Surrogates, 450.
     
      
       2 Paige, 182,
     
      
       Dayton, 452.
     
      
       Dayton, 418.
     
      
       27 Barb., 610, 614.
     