Opinion
Submitted March 27, 1885
Decided April 14, 1885
Jerome Squires for appellants. George E. Goodrich and J.N. Hammond for respondent.
Benjamin Yates, by his will, dated July 27, 1870, appointed his son, Martin H. Yates, executor, and first, after his debts were paid, gave and bequeathed unto his wife, Mariah Yates, all of his "estate, both real and personal," adding, "she to have and to hold the same, and to receive and enjoy, as her own property, the rents, issues and profits therefrom" during life, "in lieu of dower;" second, "at" her "death" he gave one farm of fifty acres to his son, Martin H.; third, another to his son, Marovah Yates, and certain grandchildren; and fourth, all the rest, residue and remainder of his estate, both real and personal, "at the death of" his "said wife," he gave and bequeathed to his sons and the grandchildren above named. He died on the 5th of October, 1875, leaving these two farms adjoining each other, and upon them a quantity of tools and agricultural implements, one harness, some horses, cows and hens, and a quantity of hay, oats, corn, wheat and potatoes.
In the spring of 1882, the executor, on petition of Marovah Yates and the grandchildren named in the residuary clause, was cited to account, and did so. His account was contested by the petitioners, first, by a general denial of each allegation; and second, by averments that he omitted to charge himself with the above-mentioned agricultural tools, implements and harness, potatoes, corn, hay and wheat. The matter was sent to a referee who, after hearing the parties and their witnesses, made a report, by which he charged the executor with the sum of $26.80 in addition to the items rendered by him, but, in other respects, allowed his account. He found, as a fact, that the agricultural implements, tools and harness set out in the contestant's answer, were not the property of the testator, and construing the bequest to the wife as giving to her the custody of, and right to use in specie, those articles " quo ipso usu consummuntur," held that he was not accountable for the hay, oats and other farm produce disposed of by her. The widow died after the accounting commenced. The report of the referee was confirmed by the surrogate, and his decree, upon appeal, was affirmed by the General Term of the Supreme Court. Creditors are not concerned, for the debts of the testator were paid from the avails of personal property sold by the executor, and not now in dispute.
The principal question which upon this appeal can be considered is, whether the construction given to the bequest in favor of the wife is a correct one. It seems in substantial accord with the intention of the testator as collected from the will and surrounding circumstances. The personal property consisted of such articles as are above described. At the time the testator made the will, and at his death, he lived upon one of the farms and his son Martin upon the other; they were used in connection, and in part, at least, for dairy purposes. In giving to the widow this real and personal property for her enjoyment during life, we think it was his intention that she should possess and use it in specie. She was to have possession and control of the whole residue, after payment of debts; and it cannot be presumed that the testator expected these perishable articles would be preserved for the remaindermen, or taken from her by the executor for sale, and the interest or income only applied to her use. They were essential to the support of stock and the carrying on of the farm, from which only the widow's maintenance could come. Under such conditions the rule on which the appellant relies, viz.: that where there is a general bequest for life, with a remainder over, the property must be sold and converted into money ( Howe v. Earl of Dartmouth, 7 Ves. 137, and other cases cited by appellant), has no application. In every instance the question is one of intention. Here it seems apparent that the immediate conversion of the property would not have been consistent with the expectation of the testator. He left no property other than the land and such personal effects as I have described, besides articles of necessary household furniture. He nowhere provides for the sale or other conversion of any of his estate, and only "at the death" of his wife is it to be divided. Nor does the will contain express words for the creation of a trust. In view of these facts, it cannot be implied that the testator wished his executor, at the moment of his death, to sell all the personal property and pay over to his wife only the interest which might accrue upon the proceeds, or that he intended to bestow upon her a farm without the means of making it available, and so in effect break up her home, while, in words, he was securing to her its continued enjoyment. It is rather to be inferred that, until her death, she was to enjoy and use the property as he had done, and in the same form in which he left it. ( Alcock v. Sloper, 2 Myl. K. 699; Collins v. Collins, id. 704; Bethune v. Kennedy, 1 Myl. Cr. 114; Hill v. Hill, 2 Lans. 43.) All these cases had in view the Earl of Dartmouth Case ( supra), but it was nevertheless held, that when the property in question was of a wasting character, and might be exhausted in the life-time of the tenant for life, the gift to the remainderman must be taken subject to such possibility, when it appeared that there was no intention of the testator that a conversion should take place before the death of the life-tenant, and such inference was drawn from circumstances not more important than those found in this case. The English cases relate chiefly to leasehold property, but Hill v. Hill ( supra) was a proceeding like the one before us. The property involved was of the same general character; the question was the same. Similar circumstances, among others, existed, and the learned court held that the principle enunciated in the general rule could not be applied without doing violence to the intention of the testator, and, therefore, that the executor could not be charged.
We think no error was committed by the learned surrogate in coming to the same conclusion in the present case. The cases cited by the appellant follow the general law, which admits of a limitation over of a chattel interest after a life-estate in the same, but are not inconsistent with the rule excepting from its operation articles of which the use consists in the consumption. ( Gillespie v. Miller, 5 Johns. Ch. 21.)
The other points made by the learned counsel for the appellant stand either on exceptions now taken for the first time, or under decisions of the referee and surrogate, depending on conflicting evidence and, therefore, not reviewable by us. Of the first class is the alleged error of the referee in receiving testimony from the executor as to personal transactions between himself and the testator. It was indeed frequently objected to, but the question of admissibility was reserved without dissent by the contestants, and the referee was at no time asked to pass upon it, nor was there an exception taken either before him or the surrogate, nor any application made to strike out the objectionable testimony. The contestant's objection presents no error of which an appellate court can take notice. The evidence having been received was available in support of any fact established by it ( Flora v. Carbean, 38 N.Y. 111), and with other testimony in the case was sufficient to justify the surrogate in refusing to change the decision of the referee, or add to his account the value of the personal property referred to by the appellant. The object of this appeal is to obtain a contrary ruling as to that property, or a new accounting. Upon the facts found by the referee and approved by the surrogate and General Term, we have no power to direct either. ( Davis v. Clark, 87 N.Y. 623.)
The award of costs was in the discretion of the surrogate. (Code, § 2558.)
Some other questions are presented, but they come within those above discussed and disclose no error.
The judgment should be affirmed, with costs to be paid by the appellants.
All concur.
Judgment accordingly.