#### Morgan A. Dayton *et al.*executors of the will of Sarah Ann Riley, deceased, plaintiffs and respondents, *vs.*Francis R. Tillou *et al.*executors of the will of Thomas Riley, deceased, defendants and appellants.

1. Pictures, statues and curiosities may pass under a bequest of “ *household goods and household furniture,"*according to their connection with the owner’s residence, the frequency of access to them, and their mode of being used by himself and his family. They do so pass when employed as permanent ornaments, and displayed constantly as such in his 2-esidence. Their *temporary*absence therefrom, caused by a mere delay to remove them in case of a change of residence, without evidence of an intent to abandon such previous use of them, does not deprive them of their character as household goods or furniture.

2. AVhere a testator, the owner and keeper of a public hotel, leased to a successor in business, before making his will, such hotel at a certain rent, and at a separate rent some tables, chairs, billiard tables, plated and glass ware, plate, and a time piece previously used in such hotel, and a collection of curiosities previously kept there as an attraction for guests, and also left on deposit in such hotel, to'be removed at .his pleasure, certain pictures, statues and casts,

*Sold,*that under the bequest of household furniture and household goods, 1st. Tables not used for the public refectory at the hotel, mirrors, glass ware. and marble clock would pass.

2d. That curiosities at the testator’s private residence, and pictures, statues and casts, not used as ornaments of the public bar room in the hotel, but only left there until he should remove them, would also pass.

3d. Silver plate, not previously used in the testator’s private residence, curiosities not found there, large vessels, suitable only for a hotel, as well as billiard tables with their appurtenances, used at the hotel, did not pass.

(Before Boswobth, Ch. J. and Robeetsou and Babboub, JJ.)

Heard December 12, 1862;

decided May 16, 1863.

This action was brought by Morgan A. Dayton and Stephen Pell, the executors of the will of Sarah Ann Riley, deceased, against Francis R. Tillou and Benjamin D. Brush, the executors of the will of Thomas Riley, deceased, to recover certain articles claimed to have been specifically bequeathed by Mr. Riley, the defendants’ testator, to his wife, the testatrix of the plaintiffs, as well as profits *eo nomine*made on their hire since the death of the testator. The issues in it were tried on the 7th of February, 1862, before Mr, Justice White, without a jury, who adjudged the delivery of the articles sued *22for, and. the payment of certain sums received by the defendants, for the use of them since the testator’s death. The present appeal is from that judgment. The decision-of the judge before whom the case v^as tried, contains findings of fact and conclusions of law.

The facts found were substantially as follows:

I. The defendants’ testator (Riley,) the original owner of the articles in controversy, died in January, 1859, leaving a last will dated in April, 1857.

II. At the time of his death he was the owner and (by his bailee for hire,) was in possession of the articles claimed in the complaint. The defendants had received $278.26 for such hire, and a demand before suit brought was made upon them to deliver such articles and pay such money.

III. He died seised in fee- of a building known as the Fifth Ward Museum Hotel, and a house in Yarick street, (Ho. 24,) and possessed of considerable personal estate.

IY. From 1834 to 1851, he and his wife (the testatrix of the plaintiffs,) oroupied such hotel, in which the articles claimed were kept. After an addition had been made to the hotel, they occupied and furnished such additions.

Y. In 1851 Mr. Riley rented the hotel with the articles in it, claimed by the plaintiffs, removed with his family to his-house in Yarick street, where he resided until his death. He took with him such part of the household furniture as he had previously used in the hotel for his family, in the part occupied by it as a residence.

■ YI. He furnished his house in Yarick street sufficiently, including, *some articles of curiosity and ornament*similar to those mentioned in the complaint.

YII. and YIII. Mrs. Riley at the time of her husband's death, took possession of the furniture in the house, and used it until her own death.

IX. At the time of Mr. Riley’s death, and also at the date of his will, the articles mentioned in the complaint were in the hotel, and he received a yearly compensation for their use, in addition to rent for the building.

*23X. The plaintiffs were executors of Mrs. Riley’s will. She died in 1850.

Mr.- Riley, in his will, bequeathed to his wife all his *household goods and household furniture,*of every kind and description. He then gave a legacy of a watch, followed by a bequest of the “net profits of the residue of his personal estate,” to two persons for life. After devising *his real estate*to his wife for life, he devised and bequeathed the remainder of his estate to certain other persons. A power of sale after Mrs. Riley’s death, of all the remainder, was given by the will to the executors. His will was proved in March, 1859.

The articles in controversy consisted principally of coins, stuffed skins of animals, dried insects, antiquities, foreign and-domestic weapons of various kinds, composing a species of museum.. This formed an attraction for customers at the hotel, and furnished a name to it. The rest were pictures, prints, one marble and several plaster statues, a time piece, some tables, chairs, billiard tables and appurtenances, and plated and glass ware and plate.

Several of the articles in controversy were in Mr. Riley’s house at the time of his death, where they remained after-wards. There was no evidence as to the person by whom, or the circumstances under which they were taken there, or how long before his death. -,

The first tenant of the hotel after it was quitted by the Rileys, (Wright,) testified that he hired the hotel from Riley, and he paid a per centage on the value of the curiosities and fixtures. He detailed four conversations with Riley, two or more of them being in the presence of his wife, respecting some of the articles in controversy. His statement of the first conversation was admitted under exception. It took place on the day he took possession of the hotel, when the Rileys were preparing to leave. Riley desiring to remove some small pictures, his wife said,- “ there was no use in removing them; if she wanted them any time she could get them.” The witness assented. Mr. Riley however, said: “ The curiosities may be left here; what is the hotel without the attractions.” *24Another occasion was when some one applied for a picture, and Riley said nothing could be removed. ' *“If I go to remove orce thing I might remove all of them.** * I don’t wish to disturb any thing at all of the things here. The hotel is not worth any thing if they go, and if I die I don’t want them disturbed. *A great many of them belong to Mrs. Riley, and I don’t want them taken away.”*In reference to a proposition, on a third occasion, to sell the curiosities, Riley said he would have to consult his wife, “ *she owned a great many of them,*and *was to own all of them.”*On the last occasion, Riley agreed to furnish a new set of curtains to his wife, if she would agree to sell an old set to the witness, which she did. He frequently said, in speaking of'such articles, “They will belong to Mrs. Riley at my death, and *I want to keep them together.”*

It was admitted on the trial that the plaintiffs’ testator received hire' for the use of the articles in the hotel in the complaint.

The judge before whom the cause was tried, found as conclusions of law:

I: That the articles in controversy passed to Mrs. Riley under the bequest of “ household goods and furniture” to her in her husband’s will.

II. That the plaintiffs were entitled to the possession of such articles as executors, and to receipt of the sum paid as hire.

■ III. That the costs of both parties should be paid out of the testator’s estate.

Exceptions were filed to the decision in question, and an appeal taken from the judgment entered thereon.

*S. E. Lyon,*for the defendants, appellants.

I. The testator, when he made his will, being a householder, possessed of a sufficient supply of household furniture for all the purposes of the house then occupied by himself and his wife, and which he gave to her for life, must have contemplated and intended that this bequest should apply to the goods used as furniture in the house then occupied by them, *25and which she would have the right and means to occupy after his death.

1. The articles in question had been used in the business of the testator, and were a part of the attractions and appurtenances to the business earned on in the hotel, both when he kept the hotel, and when he let the premises, and therefore did not pass under the words “ household goods” or “household furniture.” ■

2. The articles in question were not only not used as “household goods” or “household furniture,” but do not fall within the meaning of such words, either in the popular or technical sense, and hence are excluded from the bequest as not *ejusdem generis.*

3. The repetition' of the word “household,” as controlling the succeeding words “goods,” and “furniture,” indicates not only the intention of the testator, but limits the character of the bequest.

II. The coins, curiosities, &c. which, at the time of the death of the testator, were in the Fifth Ward Museum Hotel, can not he comprehended in the term “ household goods and household furniture.” *(Webster’s Dict.*1 *Roper on Legacies, 1s*t *Am. ed.*189-203. *Trafford*v. *Berrige,*1 *Eq. Cas. Abr.*201.) The words “ goods and furniture,” in their usual sense, denote *“*goods, vessels, utensils, and other appendages *necessary or convenient for housekeeping.”*

The articles in question are not “ necessary or convenient for housekeeping,” nor are they “ *household*articles necessary or convenient for housekeeping.” *(Pratt*v. *Jackson,*1 *Bro. Parl. Ca.*222. *Crichton*v. *Symes,*3 *Atk. R.*61.)

III. The articles in question could not have been intended by the testator to pass to Mrs. Riley, nor can his will hear such a construction, as he gave her a handsome income. The articles in question could have been of no use to her in her household affairs. And he made a subsequent bequest of the interest money and profits arising from his personal property. And also disposed of the residuum of his estate. *(Crichton*v. *Symes, ubi. sup.)*

*26IV. The judge, at special term, erred-in allowing testimony to be introduced, by the respondents, in relation to conversations and statements of the testator long prior to the inaking of his will (1 *Roper on Legacies, p.*253, *last ed. Nicholas*V. *Osborn, 2 P. Wms.*419.)

(G. *G. Sickles,*for the plaintiffs, respondents.

I. Although a few of the articles may not come under the word *“*furniture,” the words *“*household goods ” will embrace the whole, with the enlarged and comprehensive words *“*of every kind and description” added. *(Cole*v. *Fitzgerald,*1 *Sim. & Stuart,*189. *S. C.*3 *Russell Chan. Cases,*301. 2 *Williams on Executors,*1022-3. *Pratt*v. *Jackson, 2 P. Wms.*302. 1 *Roper on Legacies, ed. of.*1848, *p.*253. *Bunn*v. *Winthrop,*1 *John. Ch.*328.)

(1.) The will must be most favorably and benignly expounded to pursue, if possible, the intention of the testator. *(Touchstone,*434. 2 *Bl. Com.*381.) The court will give effect to every word of the will, without change or rejection, provided an effect can be given to it not inconsistent with the intent. *(Gray*v. *Minnethorp,*3 *Vesey Jr.*105. *Constantine*v. *Constantine,*6 *id.*102. *Doe*v. *Rawding,*2 *Barn.*& *Ald.*448.) That intention is to be ascertained from the whole will taken together,- in connection with the situation of the testator’s property and family at the time it Was made. *(Irving*v. *De Kay,*9 *Paige,*521. *Wolfe*v. *Van Nostrand, 2 Comst.*436.)

(2.) The testator must, in general, be presumed to have used words in their natural, Ordinary or primary sense. *(Matter of Hallet,*8 *Paige,*375. *Roosevelt*v. *Thurman,*1 *John. Ch.*220. *Hone*v. *Van Schaick,*3 *Barb. Ch.*488. *S. C.*3 *Comst.*538. *Cromer*v. *Pinckney,*3 *Barb. Ch.*466.)

III.. The intention of the testator is clear. The bequest includes all the household goods, and all the household furniture of. every kind and description; and the court can not give effect thereto^ except by saying that every article of household goods and household furniture, wheresoever situated, or in whose possession the same may be at the time of the testator’s *27death, whether at No. 24 Yarick street, or at the Museum Hotel, passes. *(Cole*v. *Fitzgerald,*1 *Sim. & Stuart,*189. 3 *Russell,*301. *Bunn*v. *Winthrop, 1 John. Ch.*329.)

By the Court, Robertson, J.

The evidence of the successor of the decedent (Riley) goes far to sustain an ownership of many of the articles in controversy hy Mrs. Riley before her husband’s death; particularly as several of them were at his residence at the time of his death. The language of the testator never referred to his giving them to her. But as the claim is under the will it must stand upon it exclusively.

“ Household,” as used in the second clause of the will, is susceptible of two meanings. It may designate the character of the goods or furniture wherever or iü the possession of whomsoever they may he, or it may indicate whatever is connected with the testator’s domestic establishment, and employed as articles of use or ornament; although it may not be what is ordinarily known as *furniture.*

If “household furniture” is confined to articles ordinarily used as such, it is not very easy to determine what comes within the denomination. A great many articles were exempted from levy on execution and detailed in a statute of this state, including bedsteads with their appurtenances, fire irons, a stove and cooking utensils, chairs, a table and its *furniture*for meals, school and other hooks of a certain value, provisions, fuel, a spinning wheel, Weaving loom,- Woolen yarn and cloth, and even live stock and family pictures. (2 *R. S.*367, § 22.) Yet a subsequent statute exempts frota execution, in addition to those thus specified, “necessary *household furniture’’ (Laws of*1842, *ch.*157. 3 *R. S. 5th ed.*646, § 23.) It wpuld be difficult to imagine what beyond the articles enumerated would-be *necessary household furniture,*unless all articles of use and ornament in a family were included. • This is a legislative sanction of such a meaning of the words “household furniture.” This bequest, however, goes farther and adds “household goods,” which is *nomen genetalis summo*and fairly embraces articles commonly used in a’ family. I *28think, therefore, the tables not used for a public refectory at the hotel, mirrors, glass and plated ware, and a marble clock being among the articles in controversy, would pass under one or other designation..

A testator may, however, render other things *household goods*or *household furniture*by his use of them. Books belonging to a well filled library, wines in a well stored cellar, paintings and statues in a large gallery, curiosities of an extensive museum, numerous specimens belonging to a well selected mineralogical or other collection may not he, or may be, household goods or furniture, according to their connection with the owner’s residence and his own and his family’s habitual use of and access to them. That mentor of the English language, the author of the Spectator, includes pictures as *furniture,*when he says “the *furniture*of the palaces in Venice is not very rich, if we except the *pictures.” Furniture*is not to he confounded.with *cabinetmakers’ ware,*for which it is frequently used, but implies any thing that furnishes or equips. Books, wines, curiosities, mineralogical or" other specimens, and even pictures and statues as well as plate come, under the designation of household furniture, in that sense, when .they are employed in domestic use or as ornaments of a residence. Thus in *Bunn*v. *Winthrop,*(1 *John. Ch.*329,) plate was held to pass under a bequest of household goods and funiture, in consequence of being used in a family. In the case of *Cole*v. *Fitzgerald,*(1 *Sim. & S.*189 *; S. C.*3 *Russ.*301,) a separation of effects was made on the same distinction. The subject of that decision was a bequest of “household furniture and other household effects of or belonging to the testator’s dwelling house and premises.” It was held to include every article of personal property in the house or on the premises, intended for *ornament, use or consumption.*Pictures, books, wines and liquors, models, an organ, pistols and a turning lathe passed under it. Eowling pieces not kept for the defense of the house, a cow and a pony were excluded. The admissibility of a haystack turned entirely on the question whether it was kept for" consumption or sale.

*29Applying these principles to the articles in question, the curiosities at the testator’s house should be held to pass under the denomination used in the bequest. The finding of the court was that the decedent furnished his house including them. By keeping them at his house, he undoubtedly meant to separate them from the others and .make them *household goods.*

There is no evidence that the decedent took to his residence in Yarick street any pictures, prints or statues. These do not appear to have- been part of the museum, or separately hired to the occupant of the hotel. He evidently intended to remove them as he wanted them, and only left them as a temporary deposit at his wife’s request, who said *she could get them as she wanted them.*The testator then spoke only of leaving the curiosities, and the occupant assented to Mrs. Riley’s taking them. This does not sustain any finding that they were let with the hotel. The wife showed a strong reluctance to adandon her residence,. break up the collection of pictures and statues and dispose of goods made with her own hands. Her husband consulted her as to their disposition and recognized her ultimate ownership. This shows a strong individual attachment to them, a recognition of them as domestic objects of art and family ornament, not as things kept for sale or hire. Clearly, the mere temporary absence of them from the testator’s residence ought not to deprive them of their household character. All pictures and statues not used as ornaments of the public bar-room therefore passed under this bequest.

.The silver plate mentioned in the inventory annexed to the answer, which had not been used in the testator’s private residence, curiosities not found there, large vessels, suitable only for a hotel, as well as billiard tables with their appurtenances, used at the hotel, did not pass under the bequest.

As the judgment is erroneous, therefore, as to the ownership of some of the articles, it is also as to the hire of them, which must be apportioned according to the interest of the parties in the artiples.

*30If the parties can agree as to 'which of the curiosities were found at the testator’s house, what pictures, prints and statues of his were not used in the public bar-room of the hotel at the time of the testator’s decease, as well as their value, and also that of the articles herein before declared not to pass under the bequest, and the deduction to be made therefor from the value of the-hire of the articles in controversy, the judgment can be modified, without costs -to either party, by striking out or excepting such articles from the judgment, and deducting their proportionate share of the hire of all the articles therefrom. Otherwise the judgment must be modified so as to allow a reference to ascertain those facts. Judgment to be rendered according to the report thereon, and the costs of such reference as well as the plaintiffs’ costs to be paid the defendants out of the estate of their testator, except the costs of the appeal, on which none are given to either party. The order to be settled on two days’ notice before one of the judges of the court.