In Re the Judicial Settlement of the Accounts of McDougall

Peckham, J. If otherwise proper, we may for this purpose assume that by the practical consolidation of all three proceedings before the surrogate, he had the power to decree the payment of this legacy by McDougall’s administrators directly to the party to whom it was unquestionably due, all debts and other demands (if any) entitled to priority of payment having been first paid by the deceased intestate executor. We are not disposed to hold that the surrogate must, under such circumstances, direct the payment to the administrator with the will annexed, for the sole purpose of thereby enabling him to include the amount in his accounts upon which to reckon his commissions. This, however, is not such a case. In the first place, it seems to have been one of the facts conceded on the hearing that John 0. Spooner, the administrator with the will annexed, had been to some expense in relation to taking out letters of administration and for disbursements in regard thereto. Whether such expenses and disbursements should be charged against the estate does not seem to have been affirmatively disposed of by the surrogate, further than by ordering the whole balance of the estate paid to the Avidow. If the administrator has made any disbursements or incurred ■any obligations for Avhich the estate is properly chargeable, he should have the opportunity of proving that fact and having a decree made for their payment out of the estate. Whether he has or not Ave do not say, for in the absence of further evidence we cannot determine that matter. The surrogate can decide the point Avhen it is properly presented. He has decided in this case that the AvidoAV is entitled, as matter of law, to the unconditional possession of the $6,000, rest and residue ” of this estate, AAdthout giving any security whatever. *26 The property which is to be' intrusted to her is not of the description of chattels which must be individually possessed in order to be enjoyed. It is $6,000 in cash which the widow is thus to take possession of and carry with her to a distant state, and beyond the jurisdiction of our courts. The remainder-man is thus left wholly without any other protection ■ than the responsibility of the non-resident widow. The right to make such decree is based by the surrogate upon the language of the will as contained in the above-cited third clause. Because the testator says that he leaves the “rest and residue” of his estate to his wife, “to be used and enjoyed ” by her during her life or widowhood, such expression, in the opinion of the courts below, necessarily requires that she shall have the possession of the legacy so as to use and enjoy it. On the contrary, we think the testator meant to give the widow nothing but an estate for her life or widowhood, and that the remaindermen were entitled to receive, upon her death or marriage, the whole corpus of the estate. There was certainly no occasion for the possession of the corpus by the widow if she were to have no right to use anything more than the income, and the possession of the corpus would give her no right under this will to use any portion of it. The expression “ to be used and enjoyed by her ” gave her no enlarged interest in such legacy beyond what she would have received if such expression had been omitted. By the use of the language which follows the expression, the intention of the testator is made manifest and the widow thereby takes but an estate terminable at her death or re-marriage, and without power to expend any portion of the corpus for any purpose whatever. In such a case the legatee for life is not entitled to possession of the corpus without giving security, certainly not if he be insolvent or a non-resident. In other cases where it has been held that the legatee was entitled unconditionally to the possession of the legacy without security, other facts existed, such as where the language of' the will made it manifest that the testator intended to give to the legatee power to use in his discretion *27 some portion Af the corpus of his estate for his support, or a right to dispose of it during his life by gift or otherwise, or else it appeared that it was personal property of the nature of chattels which would require possession in order to enjoy the gift and such possession was clearly contemplated by the testator, or the whole scheme of the will or the terms of the particular legacy were such as to show that the testator intended to give a legacy of money for life only, and yet clearly intended the life legatee to have possession thereof and trusted to him not to waste, use or, otherwise dispose of the corpus. The cases cited by the counsel for the respondent embody some such principle as is thus stated. (Smith v. Van Ostrand, 64 N. Y. 278; Flanagan v. Flanagan, 8 Abb. [N.C.] 413 ; In re Settlement Wood's Estate, 35 Hun, 60; Thomas v. Walford, 1 N. Y. Supp. 610; Champion v. Williams, 36 N. Y. St. Repr. 706 ; In re Grant, 16 N. Y. Supp. 716.) This is not like any of those cases. 24o such simple and plain language as this will contains can properly be construed as enlarging the quality of the estate of the life tenant, and no language can be found in it from which it can be inferred that the intention of the testator was to intrust the widow with this whole residue of the estate in cash, and waive the giving of any security by her. I have found no case where language similar to that employed in this will has been held to convey anything more than a life éstate. That the legacy was in lieu of dower gives her no larger estate than she would have taken without those words. She had no rig-lit on that account to use or give away or otherwise dispose of any part of the corpus. The language is plain and unambiguous, and cannot be enlarged by any implication arising from the fact that it is given in lieu of dower. 24or does such language authorize the delivery of the legacy to the legatee without exacting security. It is in lieu of dower, but the fact still remains that it is a life or during widowhood legacy of money, and the Avidow is a non-resident of the state. Possession of the corpus was not at all necessary to the enjoyment of the legacy in the manner and to the *28 extent intended by the testator, as such intent chi be gathered from the language he employed in his will. If the property were chattels or something of that nature which, in order to be physically used or enjoyed, must be possessed, then the proper course would be to exact an inventory of such property, and an acknowledgment that it was held for life only, with the title in the remainderman subject to the precedent life estate. (1 Sto. Eq. Jur. § 604, note 1; Covenhoven v. Shuler, 2 Pai. 122, 132; Tyson v. Blake, 22 N. Y. 558; Livingston v. Murray, 68 id. 485.) The above cases also show that it is the right of the executor in a case like this, before paying over to a life legatee a life legacy in money, to exact security from such legatee for the forthcoming of the corpus of the legacy at the time of the termination of the life or other happening of the contingency provided for. Where the life tenant is insolvent or a nonresident of the state, it is still more certain that the remainder-man has a right to demand that the life tenant shall give security before the corpus of the legacy is delivered to him. ' (Clarke v. Terry, 34 Conn. 176 ; In re Petition of Camp, 126 N. Y. 377, 385.) The surrogate should have directed the payment of the moneys to the administrator with the will annexed, who should have the opportunity of proving his legitimate charges against the estate, and, after paymerit thereof, he should be decreed to invest the balance (after deducting costs as herein directed), and pay the interest thereon tc the widow, or if she elect to take the corpus, then she should be permitted to do so upon giving security in the shape of a bond, with sureties to be' approved by the surrogate and running to the administrator with the will annexed, or his successor, conditioned for the payment of the whole corpus of the legacy to him upon the death or re-marriage of the widow. The costs at General Term and in this court of the administrator with the will annexed to be first deducted from the corpus of the estate under the direction of the surrogate, together with the several allowances heretofore made by him. *29 Ho costs should be allowed the life legatee in the General Term or in this court. The decree appealed from must, therefore, be reversed and the record remitted to the surrogate of Steuben county for further proceedings in conformity with this opinion. All concur, except Bartlett, J., not sitting. Decree reversed.