
    
      In re Swan’s Estate.
    
      (Supreme Court, General Term, Third Department.
    
    May 21, 1891.)
    Wills—Construction—Right to Income.
    A will provided that testator’s widow should have “the use and benefit of all my estate, real and personal, during the term of her natural life, or so long as she remains my widow, excepting $500 to be paid to my son, E., ” when he shall become 21 years old. The will then directed that after the death or marriage of the widow “the balance” of the estate should be equally divided between testator’s son, E., and daughter, M., except that in case of the marriage of the widow she should “be first paid $200 out of said balance. ” Held, that the widow was entitled only to the income of the estate for life or until her marriage, and in that event to $200 out of the principal.
    Appeal from surrogate’s court, Albany county.
    Application by liebecca A. Swan, widow of Erskine Swan, deceased, individually and as administratrix of said Erskine Swan, to compel Mary Swan, as the executrix, etc., of Hiram Swan, deceased, to give new or further security or for supersedure of her letters testamentary. The application was denied, and petitioner appeals The will of Hiram Swan is as follows: “I, Hiram Swan, age forty-one years, being weak in body, but of sound mind and memory, do make, ordain, and publish and declare this my last will and testament: First. After the payment of my just debts I give and bequeath to my wife, Mary, the use and benefit of all my estate, real and personal, during the term of her natural life, or so long as she remains my widow, excepting five hundred dollars, to be paid to my son, Erskine, as hereinafter provided. Second. I give and bequeath to my son, Erskine, five hundred dollars when he shall become twenty-one years of age. Third. After the death of the said Mary, or her marriage, it is my will that the balance of my estate be equally divided between my son, Erskine, and my daughter, Mary Etta, share and share alike, except that in case of the marriage of said Mary, my widow, it is my will that she be first paid two hundred dollars out of said balance. Fourth. In case my said executors hereinafter named shall think best, I hereby authorize and empower them to sell and convey the whole or any part of my real estate, and to sell any or all of my farming utensils and stock, and also my plank-road stock and household furniture, and convert the same into cash, and with the proceeds to pay off my just and legal debts, and to put the balance at interest on good security, and to keep the same on interest until the property is divided as above specified. Lastly. I do hereby nominate and appoint my wife, Mary, to be executrix, and Ambrose Chesebro to be executor, of this, my last will and testament, hereby revoking all former wills by me made.”
    Argued before Learned, P. J., and Landon, J.
    
      Lansing Hotaling, for appellant. Krum & Grant, (John B. Grant, of counsel,) for respondent.
   Learned, P. J.

The learned surrogate, in denying this application, placed his decision not on grounds of discretion, but on the ground that under the will Mary Swan has a.right to the principal, as well as the interest, of the estate after payment of the debts and of the legacy to Erskine. The appeal, therefore, requires us to construe the will in this respect. It gives to Mary Swan “ the use and benefit of all my estate, real and personal, during the term of her natural life, or as long as she remains my widow.” It excepts, however, $500, to be paid testator’s son, Erskine, when he becomes 21. This has been paid. It declares that after the death or marriage of Mary “the balance of my estate” shall be equally divided between his son, Erskine, and his daughter, Mary Etta, only that in case of the marriage of said Mary she be first paid $200 out of the balance. It authorizes the executors to sell “real estate, farming utensils, and stock, household furniture and plank-road stock, to pay off debts, and put the balance ‘fit interest and to keep it at interest till the property is divided as above specified. ” It will be seen, then, that the interest which the widow, Mary, was to enjoy was to cease at her death or marriage; but on her marriage she was to have $200 before the residue was divided between Erskine and Mary Etta. That clause evidently shows that the testator had in mind that a certain sum at least would be kept of the principal of the estate. So, also, the item giving $500 to Erskine when he should become 21 (which-would be seven years after testator’s death) shows that the testator did not intend that the whole estate should be used up before-that time. To the same effect is the direction that the executors may sell the land and keep the avails at interest till the property is divided. This does not indicate that the principal was to be consumed.- In coming, then, to construe the gift to the widow, we must notice that it is expressed to be during the term of her natural life, or as long as she remains his widow. It will be found that in this respect the language differs from many of the cases cited by respondent. A gift of the use and benefit of an estate does not mean more than the estate itself, and a' gift of an estate to a person during the term of her natural life, or as long as she should remain a widow, would not be understood to carry a fee. The case of Campbell v. Beaumont, 91 N. Y. 464, is one of the strongest in support of the respondent’s views; but there the gift was not limited by the words “during her life,” or-any similar words. The question arose on the subsequent clause that in case of her decease the same or such portion as should remain should be received by her son Charles. The clause was held not to limit the prior gift. The very words, “such portion as should remain,” showed that some portion might-be used. So in Crain v. Wright, 114 N. Y. 310, 21 N. E. Rep. 401, there were no words limiting the gift to life or widowhood. In Smith v. Van Ostrand, 64 N. Y. 278, there were the words “during.her natural life” following a bequest of money in lieu of dower. The court said that they should construe this to give only a life-estate except for a subsequent provision, viz., that $50 was to be paid the widow as soon as practicable, and the residue in six months. The court thought that this peculiar provision showed that the testator intended that she should use what was necessary. If there had been no such provision, she would have had only the use of the income. Ho such provision exists here. In Re Cager, 46 Hun, 657, the words “during the term of her natural life” were in the will; but there were also the words “at her disposal,” and the bequest and devise after the death of the wife were of the estate “that may remain at the decease of my wife.” These clauses were thought to give, the wife more than a life-estate. The question, however, arose only on an assessment of the inheritance tax, and there was no conflict on that point between the life-tenant and the remainder-man. In Cohen v. Cohen, 4 Redf. Sur. 48, the will gave the residue of which the wife should die possessed to the children. This was construed as giving her a power of disposal. Similar is the case of Leggett v. Birth, 6 H. Y. Supp. 158. How, in the present case, unlike those cited by the respondent, the gift to the wife is expressly stated to be during the term of her natural life, or during widowhood, so that the gift is by its express terms limited to a life-estate. Hor is there anything in the disposition of the remainder after her life indicating that such remainder was confined to what the widow should not have disposed of during life. The word “balance,” used in the third item, evidently refers to the residue after paying Erskine his $500. Indeed, it is evident that the testator could not have intended that the widow should use up the principal, because he provided for two legacies therefrom, viz., that to Erskine, and that to the widow on remarriage. If she was authorized to use the whole, there would be no need of giving her $200 of the principal at her remarriage. The views above stated are supported by Taggart v. Murray, 53 N. Y. 234; In re Millard's Estate, 9 N. Y. Supp. 127; Carpenter v. Carpenter, 2 Dem. Sur. 534,--and they result from a consideration of the language of the whole will. Roseboom v. Roseboom, 81 N. Y. 358. They are consistent also with the circumstances at the time the will was made, and at the time of testator’s death. The testator left him surviving his widow, age 44; his son, age 14; his daughter, Mary Etta, age 4. It was natural that he should give the use of the property to his widow for life or till remarried, and the principal, after her death, to his children. The respondent appeals to our sympathy in behalf of the widow as against the appellant, whose interest is by marriage, and by the death of Erskine;. but these are considerations with which we have nothing to do. It is our duty simply to construe the will. We think the widow was by the will entitled only to the income and to the $200 in case of remarriage. Decree reversed, and matter sent back to the surrogate for action according to his discretion under this construction. Costs of this appeal to be paid to appellant out of estate.  