#### In the Matter of the Estate of James P. Shedd, Deceased.

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

*Filed June 2, 1891.)*

Executors and administrators—Inventory—Widow.

Testator and his wife separated and did not live together for ten years before his death, nor did he for eight years preceding his death contribute to her support. He did not keep house. He provided the clothing for his daughter to the time of her majority, three years before his death, but did not pay for her board. *Held,*that, notwithstanding the fact that they did not occupy the same house, the decedent had a family within the meaning of the statute, and that the property therein mentioned was properly set apart to the widow.

Appeal by Ezra H. Shedd, the executor and sole legatee under the last will of James P. Shedd, deceased, from an order made November 6, 1890, of the surrogate of Chautauqua county, requiring him to make and file an inventory.

*Frank W.*Stevens, for app’lt; *Obed Edson,*for resp’t.

Macomber, J.

The respondent, Martha W. Shedd, is the widow of James P. Shedd, deceased. The appellant, Ezra H. Shedd, is the executor of the last will of James P. Shedd, and the sole legatee thereunder. There are no debts against the estate. The facts presented to the surrogate, and -as they appear from the printed record, are not disputed, and it is the inferences to be drawn therefrom which alone are in controversy.

For ten years before the death of James P. Shedd, he and his wife ceased living together, but lived separate and apart, though during a portion of that period in the same neighborhood. For eight years next preceding his death the husband had not contributed to the support of his wife, nor did they have any intercourse with each other; but for about a year and a half he did, to some extent, contribute to her means of support. During this period of ten years the decedent did not keep house; had no minor child or children at the time of his death, nor any servants. A daughter born to these persons attained her majority about three years before the death of her father. Up to the time of her majority he bought and paid for her clothing, but not for her board. She lived and boarded with her mother most of the time from the separation of her parents until the death of her father.

Lest the surrogate might order the executor to file an inventory irrespective of the question of the widow’s interest in the property, it was stipulated by the parties that in case it should be held that Mrs. Shedd had no such interest in the estate as she claimed, the proceedings should be dismissed and no order for an inventory be made.

The surrogate directed an inventory to be filed under the following provision of the Revised Statutes: “ When a man having a family shall die leaving a widow or minor child or children, the following articles shall not be deemed assets, but shall be included and stated in the inventory without being appraised.” 2 R. S., 90, § 9, 6th ed. By chapter 157 of the Laws of 1842, the ex*311emption made by the Revised Statutes was extended so as to include household furniture and working tools from distress for rent and sale under execution.. By chapter 406 of the Laws of 1889, § 2 of the act of 1842 was amended so as to make the exemption in specified cases $1,000 where it had been previously limited to the amount of one hundred and fifty dollars, in addition to certain articles of personal property. The amendment made by the Laws of 1889 was repealed by chapter 173 of the Laws of 1890.

The testator died October 10, 1889, so that under the law as it stood at that time the widow, if her contention be supported, would have a substantial sum set over to her for her immediate support under the statute.

The cause of the separation of the husband and wife and of their continued living apart for ten years, together with the cause of the separation of the daughter from her father, is not given. Indeed, the very minimum of information is afforded in the record upon which an intelligent judgment can be pronounced. We cannot indulge in any presumjctions in favor of one party or the other, because the facts upon which such presumptions might safely be rested do not appear. The learned surrogate was of the opinion, that considering the relation of the parties of husband and wife every “ reasonable presumption may be made in her favor.” We can hardly subscribe to this proposition. For aught that appears, she separated from her husband without cause and the household was broken up without fault on the part of the husband. In the absence of some evidence to justify the sundering of the relation of husband and wife, the true presumption would seem to be, that the husband still has, as the head of the household, the right to determine the domicil of the parties.

The question involved turns upon the meaning of the word “family.” The Century Dictionary defines that word as follows:

> “ *First.*The collective body of persons who form one household under one head and one domestic government, including parents, children and servants; and as sometimes used, even lodgers or boarders. In law, husband and wife living together, and having no children, are sometimes deemed within the benefit of a statute as to families.

> “ *Second.*Parents, with their children, whether they dwell together or not; in a more general sense, any group of persons closely related by blood, as parents, children, uncles, aunts and cousins; often used in a restricted sense only of a group of parents and children, founded upon the principle of monogamy.”

There are many other authorities which might be quoted, but it is hardly necessary to refer to them, because they all fall under one or the other head of the definitions as above given. That the word admits of many meanings can scarcely be disputed. There are many other definitions given of the word of various authorities, but the two mentioned above are the only illustrations necessary for 'the puipose of elucidating this case. A technical interpretation of the word is not to be adhered to where the object and intention of the law-makers clearly enough appear without such resort.

*312As was said in the case of the *People*v. *Lacombe,*99 N. Y, 49, the laws should be so construed as to carry out the legislative intent, even though such construction be contrary to the literal meaning of some of the words used therein. But it is not necessary, in this instance, to go to that extent; for, under one definition as above given, the decedent had a family within the meaning of the statute. The argument of the leaz-ned counsel for the appellant is to the effect that, in order to constitute a “family” within the meaning of this act, there must be a collective body of persons who live in one house, under one head or manager. It is claimed by him that unless this condition is satisfied there is no family within the meaning of the act. If this reasoning be sound, then it necessary follows that if there is a collective body of persons who live in one house, under one head or manager, irrespective of the relationship of the members of the household, there is a family.

Suppose, for instance, that at the time of the separation of Mi*, and Mrs. Shedd, instead of boarding and lodging in different places, the husband had continued his establishment with a retinue of servants; there clearly would have been a family under the argument presented to us, and under one of the definitions of the woi’d. Had the decedent died under these circumstances he would have died “ having a family; ” and imznediately the statute above mentioned would have been applicable to the case, and the exempted property set apart, not for any member of that household or of that family, but for the benefit of his wife. So we see that, if this reasoning of the learned counsel is to be followed, the statute would be bereft of the beneficent purpose for which it was manifestly enacted. It would be tantamount to legislating that, if a man should die leaving one family, certain property must be exempt from appraisal and set apart for the use of his other family. . But no such meaning, as it seems to us, can be ascribed to the statute. It is a plain statement of legislative pm-pose to set apart for the widow or minor children, or both, certain articles of property and certain moneys for the immediate necessities after the death of the husband. If a separation of ten years, without' a contribution to the support of the wife by the husband, dissevers the family within the meaning of this statute, why should not a temporary separation work the same result, where the wife is able to and does provide for her own maintenance ?

Counsel for appellant has brought to our attention the case of *Linton*v. *Crosby, 56*Iowa, 386, as being a case pointedly in his favor. Of that fact there is not much doubt. The court there held, under the statute, that where a husband and wife had lived separate and apart for several years preceding his death, and he neither contributed nor was asked to contribute to her support, and during that time he lodged in his office and boarded in the family of others, the husband was not, at the time of his death, “ a head of a family,” within the meaning and intent of the statute relating to exemptions in favor of widows and minors in that state. This decision, however, we are not able to follow, and feel *313compelled to reject its application to the construction of our own statute.

It follows that the order appealed from should be affirmed, with costs.

Dwight, P. J., concurs.

1

 Affirming 33 N. Y. State Rep., 10.