
    Nelson Daggett, Adm’r, App’lt, v. Mary Daggett, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 16, 1891.)
    
    Executors and administrators—Inventory—Property set apart for • widow—Laws 1889, chap. 406.
    Under chap. 406, Laws 1889, where the present value of the real estate set apart for the widow, together with her dower right therein and the §150 of personal property did not amount to $1,000, it was the duty of the executors to set apart for her other personal property sufficient to make up said sum.
    Appeal by the administrator from an order of the surrogate’s court of Cattaraugus county.
    
      C. D. Van Aernam, for app’lt; E. A. Scott, for resp’t.
   Corlett, J.

On the first day of April, 1890, the surrogate o the county of Cattaraugus made the following findings of fact and conclusion of law:

“ (1.) That Danforth Daggett died intestate in the month of August, T889, being a resident of the town of Yorkshire in the county of Cattaraugus, aforesaid, and leaving him surviving his widow, Mary Daggett, of the age of seventy-two years, and descendants.
“ (2.) That on the 2d day of September, 1889, in proceedings had therefor, one Nelson Daggett was duly appointed administrator of the goods, etc., of said Danforth Daggett and has ever since acted as such.
“(3.) That at said time M. C. Langmade and Chester C. Pingrey were duly appointed by said surrogate appraisers of the personal property of said deceased, and also of his real estate sufficiently to carry out the provisions of chap. 406 of the Laws of 1889. That said appraisers inventoried said property, and the same was duly filed in the office of the surrogate on the 7th day of November, 1889. That it appears from said inventory that said appraisers set apart to said widow the household furniture left by decedent, and which did not cover nearly all of the enumerated articles allowed her by law, $150 in personal property, and real estate of the value of $1,000, and nothing more.
“ (4.) That it 'appears that the personal property left by intestate in addition to said household furniture, and said $150, amounts to the sum of $342.87, and the entire real estate of which decedent died seized is of the value of $1,150.
“ (5.) That the present value of the interest in said real estate so set apart to said widow is the sum of $375.20. That the present value of her dower interest in said lands is the sum of $105.49. Add the $150. Total value of widow’s interest in real and personal estate, as set apart by appraisers (except household furniture), $630.69.
“As a conclusion of law, I find and decide: That a new appraisal is necessary. That said widow is entitled to have set apart for her the remaining personal property, or sufficient thereof to make up the sum of $1,000, which would require, in addition to what is already set apart for her, the property aggregating in value $369.31, and an order will be entered accordingly.”

The findings of fact were not controverted.

Chapter 406 of the Session Laws of 1889, was as follows:

“An act to amend chap. 2, of part 2, of the Revised Statutes, as amended by chap. 320 of the Laws of 1830, by making an additional section to said chapter, and to amend § 2 of chap. 157 of the Laws of 1842, entitled, ‘ An act to extend the exemption of household furniture and working tools from distress for rent and sale under execution,’ relating to the descent of real estate and distribution of personal property.
“ Approved by the Governor, June 7, 1889. Passed; three-fifths being present
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Chapter 2 of part 2, of the Revised Statutes, as amended by chap. 320 of the Laws of 1830, is hereby amended by making an additional section to said chapter, to be known as § 30, and said section shall read as follows:
“ § 30. If the intestate shall leave a widow and a descendant or descendants, then such widow, in addition to any interest to which she may be entitled under the preceding sections of said chapter two, shall be entitled to the use, during her life, of an additional portion of the estate, not exceeding in value one thousand dollars; and in case the intestate shall leave a widow and no descendant or ■descendants, then the widow shall be entitled to the absolute ownership, in fee, of such additional portion of the estate.
“ § 2. Section two of chapter one hundred and fifty-seven of the laws of one thousand eight hundred and forty-two, entitled ‘An act to extend the exemption of household furniture and working tools from distress for rent and sale under execution ’ as amended, is hereby amended so as to read as follows:
“ § 2. When a man having a family shall die, leaving a widow or minor child or children, then (there) shall be inventoried by the appraisers and set apart for the use of such widow and child or children, or for the use of such child or children, in the manner now prescribed by the ninth section of title third, chapter sixth of part second of the Revised Statutes, necessary household furniture, provisions, or other personal property, in the discretion of said appraisers, to the value of not exceeding one hundred and fifty dollars, in addition to the articles of personal property now exempt by appraisal by said section. And in case the interest of a widow in the real estate of a deceased husband, in addition to her dower right and together with said one hundred and fifty dollars, shall be of less value than one thousand dollars, then said appraisers shall set apart for the use of such'widow, or for the use of such widow or child or children, in the manner hereinbefore prescribed, personal property which, together with said real estate, shall amount to one thousand dollars in value. Said appraisers are authorized to make an appraisal of the estate to which the widow may be entitled, for the purposes of this section. The provisions of this section shall apply where a man dies intestate as well as where he leaves a last will and testament.
“ § 3. This act shall take effect immediately.”

This act was repealed by chap. 173 of the Laws of 1890. The act repealed in some of its provisions was somewhat obscure. One construction was put upon it in Matter of Steward, 30 N. Y. State Rep., 438; 10 N. Y. Supp., 24. A somewhat different one in the case at bar, 29 N. Y. State Rep., 864; 9 N. Y. Supp., 652, in which the surrogate’s opinion appears as well as in the case. No errors appear which would authorize a reversal.

The decree must be affirmed.

Dwight, P. J., and Macohber, J., concur. 
      
       Affirming 29 N. Y. State Rep., 864.
     