#### In the Matter of the Application to Compel Mary Swan, as Exr’x, to give further security.

*(Supreme Court, General Term, Third Department,*

*Filed May 21, 1891.)*

Will—When a life estate is given.

A testator gave his widow the “ use and benefit ’’ of all his estate during her life and as long as she remained his widow. It directed a payment of §500 to be made to his son; that after the death or marriage of his widow “ the balance” of his estate should be divided between his son and daughter, and that in case of remarriage his widow should be first paid $200. It authorized his executors to sell his property real and personal to pay off debts and to keep the balance at interest until the property was divided as specified in the will. *Held,*that the widow did not take a fee but was entitled only to the income and in case of marriage to $200.

*89Appeal from decree of surrogate denying application to compel Mary Swan, as executrix of Hiram Swan, deceased, to give new or further security for the faithful performance of said trust, or supersedure of her letters testamentary.

*Lansing Hotaling,*for app’lt; *Krum & Grant (John B. Grant,*of counsel), for resp’t.

Learned, P. J.

The learned surrogate in denying this application placed his decision, not on grounds of discretion, but on the ground that under the will Mary Swan has a right to the principal, as well as the interest, of the estate after payment of the debts and of the legacy to Erskine. The appeal, therefore, requires us to construe the will in this respect

It gives to Mary Swan “ the use and benefit of all my estate, real and personal, during the term of her natural life, or as long as she remains my widow.”

It excepts, however, $500 to be paid to the testator’s-son, Ersskine, when he becomes twenty-one. This has been paid.

It declares that after the death or marriage of Mary, “ the balance of my estate ” shall be equally divided between his son Erskine and his daughter Mary Etta; only that in case of the marriage of said Mary, she be first paid $200 out of the balance.

It authorizes the executors to sell “real estate, farming utensils and stock, household furniture and plank road stock ; to pay off debts and put the balance at interest, and to keep it at interest till the property is divided as above specified.”

It will be seen then that the interest which the widow Mary was to enjoy was to cease at her death or marriage; but on her marriage she was to have $200 before the residue was divided between Erskine and Mary Etta* That clause evidently shows that the testator had in mind that a certain sum at least would be kept of the principal of the estate. So, also, the item giving $500 to Erskine when he should become twenty-one (which would be seven years after testator’s death) shows that the testator did not intend that the whole estate should be used up before that time. To the same effect is the direction that the executors may sell the land and keep the avails at interest till the property is divided. This does not indicate that the property was to be consumed.

In coming then to construe the gift to the widow we must notice that it is expressed to bo during the term of her natural life, or as long as she remains his widow. It will be found that, in this respect, the language differs from many of the cases cited by respondent. A gift of the use and benefit of an estate does not mean more than the estate itself. And a gift of an estate to a person during the term of her natural life, or as long as she should remain a widow, would not be understood to carry a fee.

The case of *Campbell*v. *Beaumont,*91 N. Y., 464, is one of the strongest in support of the respondent’s views. But there the gift was not limited by the words “ during her life,” or any similar words. The question arose on the subsequent clause that, in case of her decease, the same or *such portion as should remain*should *90be received by her son Charles. The clause was held not to limit the prior gift The very words “ such portion as should remain ” showed that some portion might be used. So in *Crain*v. *Wright,*114 N. Y., 310; 23 N. Y. State Rep., 245, there were no words limiting the gift to life or widowhood.

In *Smith*v. *Van Ostrand,*64 N. Y., 278, there were the words, during her natural life, following a bequest of money in lieu of dower. The court said that they should construe this to give only a life estate except for a subsequent provision, viz., that fifty dollars was to be paid the widow as soon as practicable, and the residue in six months. The court thought that this peculiar provision showed that the testator intended that she should use what was necessary. If there had been no such provision, she would have had only the use of the income. No such provision exists here. In *Matter of Cager,*46 Hun, 657; 13 N. Y. State Rep., 45, the words “during the term of her natural life ” were in the will. But there were also the words “ at her disposal," and the bequest and devise after the death of the wife were of the estate “ that may remain at the decease of my wife.” These clauses were thought to give the wife more than a life estate. The question, however, arose only on an assessment of the inheritance tax. And there was no conflict on that point between the life tenant and the remainderman.

In *Cohen*v. *Cohen,*4 Redf., 48, the will gave the residue of which the wife should die possessed to the children. This was construed as giving her a power of disposal. Similar is the case of *Leggett*v. *Firth,*6 N.Y. Supp., 158 ; 25 N. Y. State Rep., 332.

Now in the present case, unlike those cited by the respondent, the gift to the wife is expressly stated to be during the term of her natural life or during widowhood. So that the gift is by its express terms limited to a life estate. Nor is there anything iy the disposition of the remainder after her life indicating that such remainder was confined to what the widow should not have disposed of during life. The word “balance ” used in the third item evidently refers to the residue after paying Erskine his $500.

Indeed, it is evident that the testator could not have intended that the widow should use up the principal; because he provided for two legacies therefrom, viz.: that to Erskine and that to the widow on remarriage. If she was authorized to use the whole, there would be no need of giving her $200 of the principal at her remarriage.

The views above stated are supported by *Taggart*v. *Murray,*53 N. Y., 234; *Millard's Estate,*9 N. Y. Supp., 127; 27 N. Y. State Rep., 789; *Carpenter*v. *Carpenter,*2 Dem., 534; and they result from a consideration of the language of the whole will. *Roseboom*v. *Roseboom,*81 N. Y., 358. They are consistent also with the circumstances at the time the will was made and at the time of testator’s death.

The testator left surviving his widow, aged forty-four, his son, aged fourteen, his daughter, Mary Etta, aged four. It was natural that he should give the use of the property to his widow for life or till remarried; and the principal after her death to his children.

*91The respondent appeals to our sympathy in behalf of the widow as against the appellant, whose interest is by marriage and by the death of Erskine. But these are considerations with which we have nothing to do. It is our duty simply to construe the will.

We think the widow was by the will entitled only to the income and to the $200 in case of remarriage.

Decree reversed, and matter sent back to the surrogate for action according to his discretion under this construction. Costs of this appeal to be paid to appellant out of estate.

Landon, J., concurs; Mayham, J., not acting.