#### BUMPUS v. BUMPUS.

(Supreme Court, General Term, Fourth Department.

July, 1894.)

Wills—Construction—Lire Estate.

Testator gave to his wife “the possession and management to control-use, income, rents, and profits for and during her natural life of all my real and personal estate, goods, and chattels wheresoever the same may be and is situated, and of what kind and nature soever, to use the same, or to dispose of at her will and pleasure after my decease.” *Held,*that the words “the same” referred to the income and profits, and therefore testator’s wife took only a life estate in the property.

Appeal from special term, Oswego county.

Action by Mortimer D. Bumpus against Electa A. Bumpus for the construction of a will. There was a judgment in favor of defendant, and plaintiff appeals.

Modified.

Argued before HARDEN", P. J., and MARTEN and MERWEsT, JJ.

D. A. King, for appellant.

S. C. Huntington, Jr., for respondent.

MERWIN, J.

This action is brought for the construction of the will of Thomas J. Bumpus, who died on the 21st day of February, 1891. The plaintiff is the sole heir and next of kin of the deceased, and the defendant is the widow. He left a will, which is dated January 20, 1881, and which was duly admitted to probate in the surrogate’s court of Oswego county on March 4, 1891, and letters testamentary duly issued to the executors therein named. The will reads as follows:

> “Know all men by these presents that I Thomas J. Bumpus of the village of Pulaski, in the County of Oswego and State of New York, being in my seventy third year of age considering the uncertainty of this mortal life and being of sound mind and memory do make and publish this my last will and testament in manner and form following: First I give and bequeath unto my lawful wife Electa A. Bumpus the possession and management to control use income rents and profits for and during her natural life of all my real and personal estate goods and chattels where-so-ever the same may be and is situated and of what kind or nature so-ever to use the same or to dispose of at her will or pleasure after my decease. And I Thomas J. Bumpus do appoint Electa A. Bumpus my lawful wife and Mortimer Delevan Bumpus my lawful and only son as executors or administrators. I hereby revoke all former wills by me made. In witness whereof I have hereunto set my hand and seal this twentieth day of January in the year of our Lord one thousand eight hundred and eighty one.

> “Thomas J. Bumpus. [L. S.]”

The attestation clause is in due form, and there are two subscribing witnesses, one of whom is the plaintiff.

The claim of the plaintiff is that the interest of the defendant in the property of the estate is limited to a life estate in the income and profits, and that she has not the right to dispose of the principal of the personal estate, or the fee of the real estate, and is not entitled to the possession or custody of the property. The defendant claims that under the will she became the sole and absolute owner of the estate, upon the theory that a gift of the use during life, with an *879•absolute power of disposition, is, in effect, a devise in fee of the real .estate, and an unqualified bequest of the personal property. It was held by the special term that under the will the defendant had the right to the possession and management of the property; that her ■interest or right in the property was not limited to the income, but .that she was entitled to have, use, and dispose of any portion of the estate that might be necessary for her support and maintenance; that she has and possesses “the full and unlimited power and right to sell, assign, convey, dispose of, in any manner that she may deem proper, at her own will and pleasure (except by last will and testament), any and all of the estate, both real and personal, of which said T. J. Bumpus, her late husband, was the owner at the time of his death, without giving any bond or security in any form in regard to said estate, or any disposition of said estate to be made by her, or in ■regard to use, preservation, occupancy, or control of the same.”

' The main question here is over the effect to be given to the expression, “to use the same or to dispose of at her will or pleasure after my decease.” Does this refer to the body of the estate, real and personal, or only.to the use or income? It is a question of intention, to-be derived from the will itself, in the light of such surrounding circumstances as may be properly considered. In Stimson v. Vroman, 99 N. Y. 79, 1 N. E. 147, it is said that, for the purpose of arriving at the intention, “we may consider all the circumstances surrounding the testator when he made the will, such as the situation of his family, and the nature and value of the estate,—not to put new language into the will, but to get out of the language the sense which the testator really meant to embody therein.” The declarations of the testator on this subject were not competent. Reynolds v. Robinson, 82 N. Y. 106. The will in question was drawn by the testator himself. He was then about 72 years old, and his wife was about 67. The plaintiff was the only child, and he was married, and had one or two children, and had then little or no property, and was dependent somewhat on his father for support. His father had given him about $2,000 in property about three years before, which had been mainly lost in business. It does not .appear what amount of property the testator had at the time of malting his will. At his death there was real estate, in value, as admitted by the answer, of about $5,000, consisting in part of two houses and lots. ■ In the findings the real estate is found to be worth about $3,500. There is personal property, as shown by the inventory filed; to the amount of about $4,700, but it does not appear how much has been or may be used up in the payment of debts and expenses. It ■does not appear that there has ever been any accounting by the executors, or settlement of the estate. The executors, as such, .are not parties to this action. Looking now to the will, we find that the testator gave to Ms wife “the possession and management” of all his property, for the purpose of enabling her “to control use income rents and profits for and during her natural life” Having thus placed in her hands, during her life, “the use income rents and profits,” he then says, “to use the same or to dispose of at her will .or pleasure.” The words “the same” refer, we think, to the income *880and profits, and not to the body, of the estate. This would indicate that the interest of the defendant was limited to a life estate, without power to dispose of the fee of the real estate, or use up the principal of the personal estate which would remain after the payment of the debts and the expenses of administration. There is nothing in the surrounding circumstances that authorizes us to reject this conclusion. The fact that the income may not, in the opinion of the defendant, be sufficient to support her, does not affect the question. Nor does a finding, as a question of fact, that the testator intended that his wife might, if necessary, use the principal, control the matter. What the will shall be construed to mean is a question of law.

It is argued on the part of the defendant that the presumption is that the testator, having undertaken to make a will, meant to dispose finally of all his property, and that this presumption should aid her view of the case. On the other hand, it is argued by the plaintiff that the presumption is against an intention to disinherit the heir, and that this assists his view of the case: These presumptions do not, ®in the present case, help us. A more pertinent suggestion is that the testator, if he had intended to give his wife all Ms property, or that she should have power to use up the body of the estate for her support, if necessary, could have readily said so. The more natural interpretation of the willj as it stands, is that the testator intended that his wife, as long as she lived, should have the possession and management of the whole, doing with the income what she pleased, and that at her death the law should regulate the succession.

The decision of the special term, so far as it was held that the defendant, under, the will, was entitled to the possession and management of the property, or rather what might remain after the payment of debts and expenses, should not be disturbed. It was also, in effect, held that the plaintiff had not made a case for taMng the property out of the defendant’s hands, or requiring her to give security. This finding should not be disturbed, especially in view of the fact that apparently there has been no settlement of the estate, or accounting by the executors. The executors, as such, are not parties, and a judgment here might not conclude the personal representatives of the estate. Collins v. Hydorn, 135 N. Y. 324, 32 N. E. 69. In Rathbone v. Hooney, 58 N. Y. 463, it was held that a judgment against a party sued as an individual is not an estoppel in a subsequent action, in which he sues, or is sued, in a representative capacity. The defendant, as executrix, filed an inventory. If she, as executrix, does not properly account for the property, the plaintiff has a remedy in the proper tribunal.

It follows that the judgment appealed from should be modified by declaring that the beneficiary interest of the defendant under the will is limited to the use, income, rents, and profits of the property for and during her natural life, and that she has no right to dispose of the fee of the real estate, or use up the principal of the personal estate, being what may remain after the payment of debts and expenses. The decree should also be modified by striking there*881from the award of costs. As modified, the judgment should be affirmed, without costs of the appeal to either party. All concur.

Judgment modified as stated in the opinion, and, as modified, affirmed, without costs of appeal to either party.