
    In the Matter of the Estate of Eliza A. Baird, Deceased. George R. Conklin, as Executor, etc., of Eliza A. Baird, Deceased, Appellant; Thomas Baird, Respondent.
    Second Department,
    May 1, 1908.
    Executor—section 2713, Code of Civil Procedure —money in lieu of articles — construction of statutes.
    The widower of a testatrix cannot receive an allowance of money in lieu of the articles specified in subdivisions 1, 2 and 4 of section 2718 of the Code of Civil Procedure where the articles named are not part of the estate.
    
      The executor is not estopped by the filing of his inventory containing such an allowance where it was inserted by the appraisers without his knowledge or consent.
    Where an executor offered to deliver the specific articles set apart for a widower, but refused to pay such allowance, the costs and disbursements of the widower should not be allowed.
    Where the Legislature in a later statute uses the terms of a prior one which has received judicial construction, it adopts the prior judicial construction.
    Appeal by George B. Conklin, as executor, etc., from certain parts of a decree of the Surrogate’s Court of the county of Kings, entered in the said Surrogate’s Court on the 30tli day of ¡November, 1907.
    
      Lewis R. Conklin, for the appellant.
    
      Fred L. Gross, for the respondent.
   Rich, J.:

On March 11,1907, Eliza A. Baird died in Kings county, testate, leaving her surviving Thomas Baird, her husband, and no children or descendants; her last will, and codicil thereto, were duly admitted to probate on June 24, 1907, and letters testamentary issued to George B. Conklin, the appellant herein, who duly qualified, and, aided by appraisers, prepared an inventory in duplicate (one of which he'filed in the surrogate’s office as required by law), showing a personal estate of $5,105.34, consisting almost entirely of cash. The deceased left no real estate, and the only personal property owned by her at the time of her death, of the kind specified in section 2713 of the Code of Civil Procedure, was four photographs, part of a box of books and pictures, one-half dozen knives and forks and one butter knife, which articles the appraisers set apart for the husband. They then included in the inventory, without the knowledge or consent of the executor, the following clause: “In lieu of the articles mentioned in subdivisions 1, 2 and 4 of Section 2713, the appraisers in the exercise of their discretion set aside the sum of five hundred dollars ($500) in cash, to be paid to the widower by the executor.” The appellant subsequently tendered the specific articles so set apart for the husband to him, and was at all times ready and willing to deliver the same. After demanding payment of said $500, the husband commenced this proceeding in the Surrogate’s Court, and the learned surrogate has made a decree directing the executor to set apart, deliver and pay to the respondent, first, the specific property set apart for him by the appraisers, and second, the $500 in cash, as an allowance and exemption awarded him by the appraisers in the filed inventory. Costs of $75.75 were allowed the respondent, to be paid out of the estate. From so much of the decree as requires the payment of the $500 cash and the costs this appeal is taken by the executor.

It is first contended that the appellant is concluded and estopped by the filing of his inventory, and cannot, in this proceeding, question the validity or legality of the allowance stated therein to have been allowed the husband by the appraisers. If the subdivisions of section 2713, under the provisions of which the allowance was made, authorize the payment of money in lieu of the specific articles therein named, in a case like the one here presented, the executor is concluded by their act; but if, as contended, no such authority is given, the appraisers exceeded their power; their act was a nullity and did not bind the executor, who may raise the question and properly require its determination in any proceeding having for its purpose the enforcing of payment of the sum so awarded.

The respondent relies upon the decision of this court in Matter of Williams (31 App. Div. 617), and later cases in Surrogates’ Courts, the decisions in which are predicated upon the assumption that in the Williams case it was decided that when the estate of a decedent does not contain the specific articles enumerated in the different subdivisions of section 2713 of the Code, the court may properly make a money allowance representing, and equivalent to, their value, to sustain the decree under consideration.

In Matter of Libolt (102 App. Div. 29) this court had occasion to consider the Williams case, and unanimously held that the only question therein presented was whether a widow, not a beneficiary under the will of her husband, was entitled to provisions and fuel for sixty days following the death of her husband, who owned no real property, under the provisions of subdivision 3 of section 2713, and that the court, upon resolving this question in favor of the widow — the appraisers having failed to set apart for her use either fuel or provisions for the statutory period of sixty days, which had then elapsed — might properly make her a reasonable allowance in money out of the estate as a substitute for the articles of which she had been unlawfully deprived, or as compensation for the redress of her undoubted grievance, and that this was the extent of the decision. The only articles involved in the question presented in that case were provisions and fuel for sixty days, and the failure to set them apart was the result of negligence of the appraisers, and not, as in this case, because of their non-existence.

The property required to be set apart by subdivisions 1, 2 and 4 is, with a single exception, specifically named. The language used in these subdivisions clearly establishes the legislative intent to limit the exemption to such of the articles named as were possessed by the decedent at the time of his death, and excludes any justifiable inference of an intention to authorize the substitution of cash if the articles named did not form part of the estate. It-would have been very easy to have expressed such an intent, had it existed, in clear and unmistakable language, together with the necessary procedure for determining the value of the non-existent articles for which cash was to be substituted. Such omission leads to the conclusion that the decree appealed from is not supported or warranted by the subdivisions of the Code section under which the appraisers acted, that they acted without authority, and their award was a nullity. This conclusion is strengthened by the fact that in 1881, in Baucus v. Stover (24 Hun, 109), it was held that money could not be allowed and set apart to a widow in lieu of the named articles. The appeal was from a decree finally settling the accounts of an executor, which allowed the widow the value of ten sheep and two swine which the appraisers had not set off to her when making the inventory. The decedent owned a half interest in the animals. The General Term reversed, holding that “ The statute contemplates such an ownership and possession of this property in the deceased, or his personal representatives, at the time of making up the inventory, as will 'permit their delivery to the widow at least potentially. Here the testator had but a half interest in these animals. They could not be then delivered over to the widow, even potentially, and, therefore, could not be set off to her.” That case was reversed by the Court of Appeals and the proceedings remitted to the surrogate, upon the ground that he should have charged one of the executors with a balance due upon a note given by him to the testator, as so much money in his hands, and ordered its distribution; but the principle decided, that where the specific articles named are not owned or possessed by the estate at the time of making the inventory their cash value cannot be set off or allowed, was not disturbed. (89 N. Y. 1.) In 1893 the Legislature consolidated and re-enacted the provisions of existing statutes relating to the surrogate and his court, without (so far as the present provisions contained in section 2713 are concerned) substantial change of language, Itis a familiar principle of statutory construction that where the Legislature in a later statute uses the terms of an earlier one which has received a judicial construction, it adopts such judicial determination as controlling the construction of the re-enacted statute. (Hakes v. Peck, 30 How. Pr. 104; People ex rel. Outwater v. Green, 56 N. Y. 466.)

Under the provisions of subdivision 5 of said section, which are mandatory (Matter of Bidgood, 36 Misc. Rep. 516), the appraisers were required to set apart personal property, including money, to a total value not exceeding $150 for the surviving husband. This they omitted to do, and upon the judicial accounting of the executor the decree should award the husband this relief. (Code Civ. Proc. § 2724.)

It being conceded that the executor tendered and offered to deliver the specific articles set apart to the respondent, and that he has at all times been ready and willing to deliver them, although the decree must stand as to them, the allowance of costs and disbursements to the respondent cannot be sustained.

So much of the decree as is appealed from must be reversed, with costs.

Woodward, Jenks, Hooker and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county so far as appealed from reversed, with costs. 
      
      Laws of 1893, chap. 686.— [Rep.
     
      
       See 2 R. S. 83, § 9, as amd. by Laws of 1874, chap. 470; Id. § 10. See, also, Laws of 1842, chap. 167, § 2, as amd. by Laws of 1889, chap. 406, and Laws of 1890, chap. 173. See, also, Laws of 1867, chap. 782, § 13, as amd. by Laws of 1887, chap. 630.— [Rep,
     