#### Matter of the Judicial Settlement of the Accounts of Joseph G. McLeod, as administrator with the will annexed of Jane McLeod, Deceased.

(Surrogate’s Court, St. Lawrence County,

July, 1900.)

Husband and wife — His right to her personalty, where she leaves no descendants and dies intestate as to her whole estate, except a life interest willed to him.

Where a wife, leaving no descendants, dies intestate as to her whole estate except that she wills the use of it to her husband for life, he takes all her personalty, the life estate by virtue of her will and the remainder by virtue of his marital rights.

Proceedings for the judicial settlement of the accounts of an, administrator with the will annexed.

Willis J. Fletcher, for administrator.

H. Benjamin Chase, for James Mathews, Mary Stone and John W. Mathews, respondents.

Herriman, S.

Jane McLeod died December 27, 1893, leaving surviving her, her husband, Joseph G. McLeod, and no descendants, her next of kin being brothers and sisters, and leaving her will, which reads as follows:

“ I, Jane McLeod, wife of Joseph Gr. McLeod, being of sound mind and memory do give, devise and bequeath all the use of my property, both real and personal to my husband, the said Joseph G. McLeod during his natural life, hereby revoking all former wills by me made.

*“*In witness, whereof, I, Jane McLeod, have to this my last will and testament subscribed my name this twenty-first day of November, in the year of our Lord, 1890, at Louisville, in the county of St Lawrence and State of New York. Jame McLeod, [L. S.]”

The will was admitted to probate and letters of administration with the will annexed were issued thereon to the husband, Joseph G. McLeod, July 8, 1895.

The inventory of the personal estate filed by the administrator shows personal property of the value of $4,476.75, and the account of the administrator shows personal property remaining in his *230hands to the amount of $4,047.54, subject to the commissions of the administrator and the expenses of the accounting.

She also left real estate of the value of about the. sum of $2,000.

It is now claimed by the husband that he is entitled to the personal property absolutely after the payment of the debts, funeral expenses, and the expenses of administration, and this claim is resisted by the brothers and sisters of the testatrix, who claim to be entitled to the personal property, subject to the life use of the husband.

It seems to me that the claim of the husband must be allowed.

The testatrix died intestate as to her entire estate, except the interest given to the husband by the will, and under the decision of the Court of Appeals in the case of Robins v. McClure, 100 N. Y. 328, and the cases there cited, particularly Fry v. Smith, 10 Abb. N. C. 224, the husband takes a life estate by virtue of the will and the remainder in the personal property absolutely by virtue of his marital rights.

The case of Fry v. Smith, *supra,*is exactly parallel to the case at bar, except that in that case the testatrix attempted to dispose of her entire estate by will, but the bequest of the remainder lapsed by reason of the death of the legatee prior to that of the testatrix.

Courts cannot guess at the wishes of a testator, and can only attribute to him such intentions in regard to his estate as are expressed in or are necessarily to be implied from the will.

In this case we are left without the slightest intimation of the wishes of the testatrix as to the remainder of her personal estate, for provision in a will for a person who would take a share of the estate in case of intestacy raises no implication of an intention to exclude that person from sharing in the residuum undisposed of. To cut off such person it is necessary that the estate should be effectively bequeathed to another. Jackson v. Schauber, 7 Cow. 187.

The remainder in the personal property must go according to the laws of intestacy, that is, to the husband absolutely.

Let a decree be drawn settling the accounts of the administrator as filed and discharging him and his sureties from further liability as to the personal estate, with $100 costs, in addition to the actual expenses of the accounting, payable from the estate,

Decreed accordingly.