
    John Davison et al. versus Ebenezer Gates et ux.
    
    Devise“I give and bequeath to my wife a tract of land containing twenty acres, together with the house thereon standing, reserving however to my mother the privileges which she has heretofore enjoyed in said house, during the term of her life. I also in like manner give and bequeath to my wife all my personal property, to the intent that she may be enabled to pay all my debts. All the before mentioned premises my wife is to have, use, occupy and enjoy during the term of her natural life, and at her decease I devise and bequeath, that all and every part thereof, both real and personal, do revert and enure to my brothers and sisters.-—I will, devise and bequeath, that my mother retain the .usual privileges of the house, Sz.c., and that she be comfortably supported out of the before bequeathed and devised premises to my wife during the term of her natural life. —I will, devise and bequeath that the residue of my real estate, being about sixty acres, be committed to the care, management and disposal of my wife, (if necessary) for the support of my mother during the term of her life, and at her decease the sixty acres to revert and become a fee simple in the hands of my said brothers and sisters.” The wife was appointed executrix, and after the death of the mother she presented for allowance her administration account* exhibiting a balance due to her for payments made for the support of the mother. It was held, that the wife took only an estate for life in the twenty acres, and that as executrix she was bound to account for the income of the twenty acres, and of the personal property remaining after the payment of debts and expenses, and if such income should not be sufficient to reimburse the expenses incurred for the support of the mother, the income of the sixty acres should be applied to make good the deficiency.
    This was an appeal from the decree of the judge of probate, allowing an account of Ebenezer Gates and Candace his wife, she being the executrix of the last will of Zephaniah Davison, her former husband, and the appellants being devisees.
    The second clause of the will is as follows : —<61 give and bequeath to my wife Candace, a tract of land, &c., containing about twenty acres, together with the house, barn and other buildings thereon standing and being, reserving however to my mother Susannah Davison the privileges, rights and immunities which she has heretofore enjoyed to, in, with and from said house and buildings, during the term of her life to all intents and purposes. I also in- like manner give and bequeath to my said wife all my personal property, to the intent that she may be enabled to pay all my debts ; and I hereby will and ordain that she procure three decent sets of tombstones with suitable inscriptions to perpetuate the memory of my deceased father, my mother and myself. All the before mentioned premises my said wife is to have, use, occupy and enjoy during the term of her natural life, and at her decease I devise and bequeath that all and every part and parcel thereof, both real and personal, of the before mentioned premises, do revert and enure to my brothers and sisters, to wit,” &c.
    The third clause is : — “Relative to my pother Susannah Davison, I will, devise and bequeath that she retain the usual privileges of the house as she has before enjoyed, and that she be comfortably clothed and fed, maintained and supported, in sickness and health, out of the before bequeathed and devised premises to my said wife Candace during the term of her natural life, and her funeral obsequies performed at her death.”
    In the fourth, fifth and sixth clauses certain other real estate is devised to his father-in-law, two of his brothers and an adopted son.
    The seventh clause is : — “I will, devise and bequeath that the residue of my real estate, being about sixty acres of land, be committed to the care, management and disposal of my said wife (if necessary) for the maintenance and support of my said mother Susannah Davison, during the term of her life and the procuring the tombstones before mentioned, and at the decease of my said mother, the sixty acres of land to revert and become a fee simple in the hands of my said brothers and sisters, to them and their heirs and assigns, on an equal distribution between them, excepting ” &c.
    At a probate court held in 1830, the appellees presented an account, in which they pray an allowance of charges as payment by them of a legacy to Susannah Davison, viz.
    To supporting and maintaining said Susannah from September 3, 1808, to December 3, 1826, 18 years and 3 months, at $ 1‘50 per week . $ 1423-50
    
      
      Sept. 14th
    
    Brought forward . . . 1423-50
    To funeral charges and grave-stones for said Susan-nah, and incidental expenses . . . 40-50
    1464-00
    Contra.
    By use of real estate given by will, viz. 60 acre lot,
    18 years at $ 18 per year . . . 324-00
    $1140-00
    The judge allowed the credit to the estate, as contained in the account, and of the charges he allowed $ 988:50, leaving a balance due to the accountants, of $664-50. ^
    An appeal from this decree was claimed, for the following reasons : —
    1. Because nothing but the income of certain real estate was devised for the use and benefit of Susannah Davison, and that only for her life, and the appellees were not authorized or required by the will to pay over to her any thing but the annual income, and that only during her life, the whole of the real estate devised for her life being devised in remainder to the appellants and others, from and after her death.
    2. Because the rents and income of the real estate which was devised for the support of Susannah Davison, and which rents and income the appellees received from the death of the testator to the death of Susannah, a period of about twenty years, and which were more than enough to support Susannah, have not been credited to the estate of the testator, but only a small part of the same has been accounted for by the appellees.
    
      Dwight and Byington, for the appellants,
    cited Stevens v. Winship, 1 Pick. 318 ; Bowers v. Porter, 4 Pick. 198 ; Humes v. Wood, 8 Pick. 478 ; Hubbell v. Hubbell, 9 Pick. 561.
    
      Hubbard and Filley for the appellees.
    The provision m the will for the support of the testator’s mother was a legacy, and the payments therefore by the executrix were not voluntary or gratuitous. Farwell v. Jacobs, 4 Mass. R. 634 ; Baker v. Dodge, 2 Pick. 619. The testator intended not only to give a legacy to tiis mother, but likewise to make a provision for his wife ; and under the first part of the second clause in the will she took a fee simple in the twenty acres, and therefore was not obliged to account for the rents and profits of this parcel. The charge upon her to support the mother gives her the fee. Baddeley v. Leppingwell, 3 Burr. 1541, 1542 ; 4 Kent’s Comm. 524. The latter part of the clause restricting her to an estate for life, is repugnant to the former and void; as is likewise the third clause, so far as it charges the twenty acres previously devised to the wife. All the specific devises are equally liable with the twenty acres to contribute to the legacy to the mother. Hays v. Jackson, 6 Mass. R. 149. The will gives the. wife a fee in the sixty acres in case it should be necessary for her reimbursement, and the limitation over after the devise of the fee, is void. Or supposing the remainder over to be good, it was nevertheless contingent and capable of being defeated by the tenant for life. 2 Bl. Com. c. 11. The sixty acres therefore may be sold to reimburse the executrix.
    
      Sept. 17th
    
   Wilde J.

delivered the opinion of the Court. It appears from the decree of the judge of probate upon the account presented by the appellees, that a balance of $ 664'50 was allowed in their favor ; and the appellants contended that according to the true construction of the will of Zephaniah Davison, no balance in favor of the appellees should be allowed.

By the second clause in the will a tract of land of about twenty acres is devised to the executrix for life, together with all the testator’s personal property. The third clause directs that the testator’s mother “ should be comfortably clothed, fed, maintained and supported, in sickness and in health, out of the before bequeathed and devised premises to the said executrix.” And by the seventh clause in the will the testator directs that all the residue of his real estate, being about sixty acres of land, should be committed to the care, management and disposal of his wife, the said executrix, (if necessary) for the maintenance and support of his mother during her life, and for other purposes.

These are all the clauses in the will, which it is material to consider, and the construction of them appears to be very clear. By the second clause a life estate is expressly given to the executrix, which by the third clause is charged with the support and maintenance of the testator’s mother. The charge, however, is on the income and profits of the twenty acres, and of the personal estate. There is no personal charge on the executrix, and therefore there is no reason for supposing that a fee simple was intended. We think, therefore, the appellees are bound to account for the rents and profits of the twenty acres, and for the income of the personal property, after deducting the amount of debts paid, expenses, &c. ; and if this should not be sufficient (as probably it will not be) to reimburse the expenses incurred for the support and maintenance of the mother, the income of the sixty acres is to be applied to make good the deficiency.

It has been said that the second and third clauses are repugnant, as the expenses of supporting the mother exceed the income of the twenty acres, and of the personal property. But construing the two clauses together, they are sufficiently intelligible and consistent. The continuance of the mother’s life was uncertain, and the amount of benefit to be derived by the executrix from the devise and bequest depended on the duration of the life of the mother. But as the event has happened, still the devise and bequest are beneficial, as the charge upon them ceased on the death of the mother.

It has been said also, that the expense of supporting and maintaining the mother should be charged exclusively on the sixty acres, but the language of the will is such as very clearly will admit of no such construction.

The decree of the judge of probate, for these reasons, must be reversed, and a new account is to be taken conformably to th( principles above stated.  