#### WILLIAM MACOMBER, by guardian, Respondent, *v.*THE BANK OF BATAVIA and others, Appellants.

*Devise to mother of use and income of property for life, to he used for support of mother and son*— Interest *of mother not alienable or subject to levy. ■*

Appeal from an order of the Special Term in Erie county, denying amotion made by the defendants, the judgment creditors of Maritta M. Macomber, and by the sheriff of Genesee county, to dissolve an injunction granted herein by the county judge of Genesee county, restraining such creditors and sheriff from enforcing the collection *295of certain judgments recovered against said Maritta out of certain real and personal property described in tbe complaint, in her possession and under ber control. Tbe motion was founded upon tbo papers upon wbicb tbe injunction was granted.

Tbe injunction was ordered on tbe ground that tbe real and personal property aforesaid was held by tbe said Maritta as trustee of tbe plaintiff, and that she bad no leviable interest therein. Tbe question as to tbe nature of ber interest in tbe property depends upon tbe construction of certain provisions of tbe last will and testament of William Macomber, who died in December, 1861, leaving tbe said Maritta bis widow, and tbe plaintiff, bis son, then an infant aged about three years.

Tbe provisions of tbe will, upon tbe construction of wbicb tbe solution of tbe question above stated depends, are in tbe following words: “ Article 3d. I will and give and bequeath unto my beloved wife, Maritta M. Macomber, tbe use, improvements and income of one hundred and fourteen acres of land, with all tbe appurtenances, and all tbe use and income of tbe same, and all household furniture, and tbe use of all farming utensils, and three horses, four cows, fifty sheep, twenty swine, and six bead of young cattle; tbe said one hundred and fourteen acres of land being my old farm or home- • stead, to wit ” (describing it). “ In consideration of my beloved wife, Maritta M. Macomber, receiving tbe use and income of tbe above one hundred and fourteen acres of land, with tbe appurtenances thereto, in full, for ber dower, and for tbe support of herself and my son and ber son, William Macomber, now over three years old, and for bis education and benefit in sickness and in health, till twenty-one years old, if be should live to tbe age of twenty-one, wbicb will be a. d. 1878 — born November 4, 1857; and the above real and personal property to remain in full for tbe control of my wife, Maritta M. Macomber, ber lifetime, and for her benefit, and my son and ber son, William Macomber, as above.” “ In case my beloved wife should not live till tbe said William Macomber is of age, or twenty-one years old, then my executor this my last will shall have all tbe control of tbe above real and personal property for tbe benefit of my son, William Macomber, till of age, or twenty-one years old. Tbe use of tbe above real and personal property is for tbe use and benefit of my wife in lieu of all dower, and at ber death, *296will and give and bequeath all the real and personal property aforesaid to my son and her son, William Macomber, if living.”

“ The intent of this third article is that my wife, Maritta M. Macomber, have the use and benefit of all the above real and personal property for herself and my son and her son, William Macomber, and after his mother’s death to be the only heir to all property named in this third article.”

*“*In case he should not live or survive his mother, Maritta M. Macomber, then to be divided equally among all my legal heirs after her death, and the said real and personal property to be put in the possession of my wife, Maritta M. Macomber, clear from all incumbrance; and at the death of my wife, Maritta M. Macomber, to remain clear as then.”

The court at General Term said: “ The intent to be gathered from these provisions is, as we think, to give to the widow merely the use and income of the property, real and personal, during her life. Out of it she is entitled to her own support, and she is required to apply it to the support, education and benefit of her son, the plaintiff. To the extent- of the beneficial interest of the plaintiff, she takes the use and income of the property in trust, and her term is inalienable during the minority of the plaintiff. The trust is for a va) id purpose (1 R. S., 128, § 55, subd. 3), and as it is not to continue beyond the life of the widow, it does not work an illegal suspension. The gift to the widow is limited in express terms to the use of the property. The rule of law that a devise of the interest or of the *rents cmd profits*is a devise of the thing itself, out of which that interest or those rents and profits may issue, is subject to limitations. Where, as in this case, the intention of the testator to give *onT/y the use*is clear, manifest and undisputed, the rule must yield to the stronger force of the intention. *(Patterson*v. JElUs, 11 Wend., 298.) The plaintiff has a vested interest. In addition to his beneficial interest in the trust, he is vested with the fee of the real estate and the ownershi]3 of the personal property,'subject to the right of his mother to the use of the same, during her life, for the purposes aforesaid, and subject to being divested by the happening of his death diming the lifetime of his mother. We are of the opinion that the widow has no alienable or leviable interest in the property disposed of by the will.”

*297
      *M. H. Peck,*for tlie appellants.

*Geo. Bowen,*for the respondents.

Opinion by

Smith, J.

Present — Talcott, P. J., Smith and Mebwin, JJ.

Order of Special Term affirmed, witb ten dollars costs and dis bursements.