
    Sweet v. Burnett et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    July 22, 1892.)
    Wills—What Passes under Expression “Monet. ”
    Testatrix bequeathed certain legacies, to be paid out of “the money of my husband’s estate now belonging to me, ” and then bequeathed “the residue of said money” to others. Testatrix’s husband had died 10 months before, leaving all his property, real and personal, to his widow. The estate consisted of money in hank, notes due him, goods and chattels, and a farm, the personalty being in the hands of the husband’s executor. Meld that, as testatrix would have received her husband’s personalty as money, the proceeds of all the personalty passed under the expression “ money ” to the legatees, but that the real estate did not pass thereunder.
    Appeal from special term, Dutchess county.
    
      Action by George Sweet, executor of Julia A. Rozell, deceased, against Henry K. Burnett and others, for the construction of testatrix’s will. From a judgment for plaintiff, defendant Henry K. Burnett appeals. Affirmed.
    Argued before Barnard, P. J., and Dykman and Cullen, JJ.
    
      L. B. Sackett, for appellant. Herrick & Losey, for respondent George Sweet. P. E. Ackert, for respondents Maria Decker and Mary Burnett. F. L. Akerley, for respondent Harvey Hicks. S. K. Phillips, for respondent Caroline Gifford. Fred. E. Ackerman, for respondent Jane Murphy. Hufcut & Travis, for respondents Obed Rozell and Josephine McElwin. William Downing, for respondent Wyman Rozell. Allison Butls, for respondents Stephen and Samuel Rozell. Hackett & Williams, for respondent Elizabeth Rozell. Lewis Baker, for respondent Mary J. Heermance.
   Cullen, J.

The question presented in this case is, what passes under the term “money,” in the second paragraph Of the testatrix’s will? That paragraph is as follows: “From the money of my husband’s estate now belonging to me, 1 desire that all my funeral and other expenses be paid, and out of the same I give to Robert Nickerson the sum of one hundred dollars; to Francis Nickerson, the sum of one hundred dollars. The residue of said money I wish to have divided equally between my husband’s nieces and nephews.” The testatrix’s husband had died 10 months prior to her own decease, leaving all his property, real and personal, to his widow. The husband’s estate consisted of a deposit in the savings bank, notes due him, some articles of household furniture, farm products, and the like, and a farm. At the death of the wife the husband’s personal estate was still in the hands of his executor. In Smith v. Burch, 92 N. Y. 228, is to be found an extensive review of the authorities on the construction of the term “money.” The rule enunciated by the court is that, ordinarily, standing alone, the term means only that which passes current as money, including bank deposits; but when read with the' context of the will it may be held to include any kind of personal property. We think that the testatrix intended by the word “money,” in this will, to include all the proceeds of the personal estate of her husband. The estate has not been settled. It was the duty of the executor to convert the personal property into money, and the widow would receive it only in that form unless by agreement with the executor to the contrary. The sums in the different investments might vary before the estate was transferred to her, from causes entirely independent of her acts. The executor might use the moneys collected on the notes, or those deposited in the savings bank, to pay debts or charges against the estate. The testatrix must be assumed to have known how her own funds were invested, but not necessarily the investment of her husband's property; but the dominant consideration with us is that, in law, she would receive the personal estate of her husband as money, and therefore those proceeds are properly described as such. But we think there is not sufficient in the will to show that the testatrix intended by the use of the word “money” to pass the farm devised to her by her husband, even assuming the word “money” could, under any circumstances, be given such a comprehensive meaning. The only authority justifying such an interpretation is Estate of Miller, 48 Cal. 165. This case is cited in the opinion delivered in Smith v. Burch, supra, but the court of appeals, in its own declaration of the rule of construction, limits money to personal property.

The judgment appealed from should be modified so as to declare that the farm of the testatrix does not pass to the husband’s nephews and nieces, but descended to the testatrix’s brother ancl heir at law, the defendant Burnett. In other respects the judgment should be affirmed, without costs of this appeal to either party. All concur. .  