In Re the Final Accounting of Frazer

Finch, J. The provision of the will giving to the widow “ all of the household property in the dwelling-house ” is broad enough to include the coal and wood provided for the use of the family, and also the shot-gun, in the absence of proof showing that it was not kept for the defense of the house. (Dayton v. Tillou, 1 Robt. 21; Cole v. Fitzgerald, 1 Sim. & Stu. 189.) Such may have been its use and purpose, and we are not required to presume the contrary from any fact given in evidence. The ruling of the surrogate in these respects was correct. The appraisers set apart as exempt and for the use of the widow a horse, phaeton and harness of the value of $150, which it is now said were not “ necessary,” since she took under the will all the household property, and the use of the house for life. If we could so decide, where the testator had given to the widow the use of all his real and personal property, except a legacy due him (Peck v. Sherwood, 56 N. Y. 615), we cannot say it-where only the household property is given. In such a case “ other personal property ” is available for the exemption, and may be necessary. When the appraisers have so determined and the surrogate approved, there is no basis left for us, unless upon very different facts, on which to found a reversal of such conclusion. Certain payments of alleged debts against the estate are questioned, and the executors sought to be charged with their amount. All of them are shown, to have been honest debts, and honestly due. ¡No adequate reason is given why the executors should have suspected their justice, or doubted the propriety of their payment. What is said amounts only to an assertion that the executors might possibly have resisted them *247 with success, and were bound to make the effort. One of these claims was that of Mullin. It was based upon an alleged contract with the deceased, and presented and sworn to in the ordinary manner. The executors having paid it and produced their voucher, the burden was on the contestants to show that it was not a just debt of the estate. They showed nothing of the kind. All the proof is the other way, and the sole point of their criticism is that the executors could have kept out proof of the contract by resisting the claim, and shutting out Mullin as a witness to personal transactions with the deceased. But that does not follow. If the executors had defended, proof of the contract might have come from some other source. And in any event there is evidence of the value of Mullin’s services reaching quite to the level of his claim. We think Mullin was a competent witness. He was not a party, nor did the executors derive any title or interest from him. They neither owned the debt, nor asserted any title to it. As the contestants did not establish that the demand was unjust, and not a debt of the estate, the payment by the executors was properly allowed. The objection to the payment made Mrs. Tierney, for the wages of her son Peter, appears to have been that she was not authorized to receive them, and they were outlawed. The services ended in March, 1871. Peter was then eighteen. The statute did not begin to run against him until 1874. (Code, § 396.) The payment was in 1879. Peter had died at some time previous, but when we do not know. His father died in Hoy ember, 1877. If the wages belonged to the father it is claimed they were outlawed; but if they belonged to the son it is not claimed that they were barred by the statute, but only that the mother, not having been appointed administrator, could not lawfully discharge the debt. But the estate of Wells has suffered no wrong. It cannot be made to pay the debt a second time, for the statute is a bar. It was an honest debt, and has gone to the benefit of those entitled. The executors should not be charged with it unless by their act the estate has suffered some loss. It has suffered none and can suffer none; *248 and we ought not to punish executors for omitting a precaution, which would have been wise, but which time has rendered unnecessary for the safety of the estate committed to their care. The third payment questioned was made to the widow. The fact that the testator had $380 of her money and loaned it in 1869 and afterward included the amount in a mortgage taken to himself is not disputed. But the statute of limitations is again relied on. The husband was allowed by the wife to retain the money. There was no conversion by him for which trover could have been maintained. ' The transaction amounted to a trust or a deposit. Originally the money was loaned to McPherson, and the notes taken in the name of the wife. In February, 1870, McPherson wanted more money on his bond and mortgage, and the testator loaned it, including in the security taken in his own name the debt due his wife. Whether this was done with the knowledge and assent of his wife we do not certainly know, bnt .assuming that it was, unless she loaned him the money, which is not shown, he held the mortgage to the extent of her money in it as her agent or trustee. If she so consented, which is most probable, she became in equity the owner of a proportionate part of the mortgage, but was not entitled to receive the money until it was paid, and could maintain no action until her right was in some manner denied. But we are asked to presume that she did not consent in order to make her husband a wrong-doer, and guilty of a conversion of the money, and so set running the statute of limitations, and outlaw the demand before the death of the testator, and thus make the executors liable for an improper payment. The burden was upon the contestants to prove their case. We cannot relieve their failure by presuming that the husband was guilty of a conversion of his wife’s money, when it is both possible and probable that he merely invested it in his own name for her benefit, and with her knowledge and consent. The relation of the parties to each other, their conduct, and all the facts disclosed indicate such to have been the truth of the transaction, and, therefore, that the claim of the wife was just, and not barred by the statute of limitations. *249 On that basis interest was payable to the widow because earned by the investment of her money and received by the testator for her. . The will directed the executors to expend a sum not exceeding $2,000 in the repair of the cemetery lot of W. H. Smith, who was testator’s father-in-law, and that his body should be kept in a receiving vault in Le Boy until such repairs he made. After his death a sarcophagus was erected upon the lot at a cost of $500 and his remains placed therein. After this, the monument on the lot was exchanged for a better one, headstones to graves erected, and coping replaced at a further cost of $935.05. This last expenditure is objected to on the ground that a new monument was not “ in repair ” of the lot, and there being a sarcophagus there was no need of a monument. It can scarcely be necessary to review a discretion exercised by the executors and kept within the limit fixed by the testator himself. What was done was plainly within the authority of the will and was reasonably and fairly executed. ■ Certain repairs were put upon the homestead amounting to $320, which were done at the request of the widow and Henry McDonald. One-half was, therefore, charged to each. Under the will the widow had a life estate in the homestead. The remainder in fee went to Henry and Willard McDonald. The repairs benefited both the life estate and the remainder. The executors were not bound to make them so far as the facts disclose. What they did was to advance to the widow and Henry $320 out of the estate, at their request, which was expended for their benefit and in accordance with their direction. Why they should not be charged with what they had, and why the executors should personally pay one-third of it, we are unable to perceive. Finally, it is objected that the widow was not entitled to dower because the provisions for her benefit under the will were accepted by her, and dower was excluded by the manifest intention of the testator derived from the scope and tenor of the will. No trust estate was vested in the executors. They had simply a power of sale, with no right to rent or *250 lease, and no control over the rents and profits. No duty relating to the real estate was imposed upon them except to sell and convey. Dower, therefore, was not excluded by the creation of a trust estate inconsistent with it, vested in the executors. (Savage v. Burnham, 17 N. Y. 561; Tobias v. Ketchum, 32 id. 327.) The provision giving the rest, residue and remainder of his property to the widow and the McDonalds is not inconsistent with dower, for it relates to the division of his estate, and does not purport to dispose of hers. The two may stand together. The intention manifested in the will was not an equal division of all his property among the three, as in Chalmers v. Storil (2 Ves. & Bea. 222), a case shaken by subsequent criticism. (Gibson v. Gibson, 17 Eng. L. & Eq. 349.) But the equal division aimed at is of - a residue which may well be deemed the remainder of the property subject to the dower right. (Havens v. Hamens, 1 Sandf. Ch. 324; Mills v. Mills, 28 Barb. 456,) The repugnancy, therefore, which drives the widow to an election must come, if at all, from the provision for the support of testator’s brother, those directing a sale, and that devising a house and lot to Mrs. Carr. It is conceded that the support of the brother was simply charged upon the McDonald farm, which was not to be sold. The existence of such a charge does not necessarily exclude the widow’s dower in the same land, especially since the executors are also directed to reserve in their hands sufficient of testator’s property for the purpose of that-support. The devise to Mrs. Carr and the direction to sell and convey a part of the real estate do not necessarily conflict with the right of dower in the present case. (Jackson v. Churchill, 7 Cow. 287; Havens v. Havens, supra; Fuller v. Yates, 8 Paige, 325.) Directions for a sale may be so expressed and the purpose to be answered of such peculiar character as to indicate an intention to exclude dower. (Vernon v. Vernon, 53 N. Y. 362.) But no unusual or peculiar state of facts exists in the present case to compel an inference that the property directed to be conveyed was to pass free and discharged from the widow’s dower. There is enough in the will to produce hesitation *251 and reflection, but not enough to establish that clear repugnancy, that manifest intention which is alone sufficient, in the absence of express words, to drive the widow to her election. The judgment should be affirmed, with costs. All concur. Judgment affirmed.