In re Metcalfe, 1 Gibb. Surr. 16

In re Metcalfe

1 Gibb. Surr. 16 | N.Y. Sur. Ct. | 1894

Gorkin, S.

It is well settled that the surrogate has jurisdiction to construe a will on accounting, and this is such a proceeding.

The will gives the use of all the property, real and personal, to the husband, in effect, for life. It does not, either in terms or by ■fair inference, give him the property, but only its use. It does not “ leave ” it to him to be enjoyed by him for his sole use and benefit, as in the case of Campbell v. Beaumont, 91. N. Y. 464, cited by the executor’s counsel, nor can we anywhere gather from the will any such intention. It cannot be pretended that the title to the farm would pass under the provisions for its use, and the word embraces and is applied to both kinds of property. If it will not pass the title to the farm, how can it be held that it *18does so as to> the personalty ? Oan we so construe it as to give it a double meaning ? Evidently it was used in a single and ordinary sense. The word “ wish,” as used in the following sentence, making a final disposition after the death of the husband, is sometimes construed as a mere precatory word, and sometimes as equivalent to the words “ will ” or “ direct.” Here it appears to me to have been employed in the sense of the latter word. It is accordingly determined that the executor has a life estate only with remainder to the nephews and nieces. This appears to have been the intention of the testatrix as gathered from the will, which was drawn by herself.

The right to use the implements and machinery on the farm in conducting farming operations by the husband is a question for subsequent consideration.

It must, therefore, be held that sufficient cause has not been shown why the executor should not file his account, and the further order provided by statute in such case may now be entered.

Ordered accordingly.

Note. — A' surrogate has jurisdiction to construe a will upon an accounting. (Matter of Young, 11 Misc. 680; Baldwin v. Smith, 3 App. Div. 350.) And in proceedings for probate of a will. (Matter of Bogart, 43 App. Div. 582.) But not in proceedings to revoke probate. (Matter of De Hass, 24 Misc. 420.) But he cannot construe a provision relating exclusively to real estate. (Matter of Schweigert, 17 Misc. 186.)