There is abundant evidence to sustain the findings of the referee that the two mortgages held by Mrs. Griswold were delivered by plaintiff to the executor Dibbell, and by him delivered, with the knowledge and consent of plaintiff, to defendant, for collection, and that all the funds and securities in defendant’s hands represented the principal of Levi Griswold’s estate, or such accumulations of interest as were not used or needed by Mrs. Griswold for her support. There is no doubt about the identity of the fund. The question in the case is, what were the rights of Mrs. Griswold under her husband’s will ? Was she entitled to the principal or interest absolutely, or was her right limited to such parts of the principal or interest, either or both, as she might actually use or need for her support and comfort during her life? There is evidence in the case showing what construction she put on the will, but that docs not control. There is no estoppel here, especially there is none against the defendant by reason of his being Mrs. Griswold’s agent, and not, therefore, competent to dispute her title. He only did with the property, after her death, what is very evident she wished to have done. He was agent for the estate as well as for her. He could pay to the owner, a foreign executor, unless others had legal rights thereto The very object of his agency was to keep the fund invested for the benefit of the estate after her death. There was nothing to prevent his saying that her rights ended with her death.

We then come to the will of Levi Griswold, ne, in the first place, gives to his wife, during her natural life, such portions of his library as she may wish, and, in effect, authorizes her to dispose of the remainder in such manner as she shall deem best. He then gives to his wife “all my real and personal estate, to be possessed and used by her at her discretion, and for her support and comfort during her natural life, having confidence in her that it will be used and retained, and the amount, the increase and the residue, whether more or less, left sacred to the purposes to which we mutually agreed to devote it.” Then he authorizes her, in a certain contingency, to dispose of the household goods and furniture. Then, after stating the reason therefor, he gives to certain benevolent societies “ all my estate, real and personal, goods and chattels, of whatsoever nature *159or kind soever in her possession, and held by her np to and at the time of her decease,” after her funeral expenses are provided for, and, in the same clause, adds “ to be held in trust by my executor,” and after her decease he is to divide and pay over to the societies. It will be observed that he áuthorizes her to dispose of the library and household goods, but does not, in terms at least, authorize her to dispose of any other part of his estate. As to the duration of her right, he expressly says during her natural life. As to the extent of her right, he says to be possessed and used by her at her discretion, and for her support and comfort; and he has confidence in her that she will so use and retain, that the amount, increase and residue, whether more or less, will be properly preserved for the residuary legatees. The objects of her use and possession are specified as her support and comfort; the manner of such use and possession are left in her discretion. The title to the whole is provided for in the residuary clause, in the expression to be held in trust by my executor, and with the direction to divide and pay at the wife’s decease. In order to divide and pay, the executor must, of course, have legal control. It certainly was not contemplated that the widow had any rights that survived her. It was the will of the testator that the executor should all the time hold the property in trust, should permit the widow to enjoy, in the use and possession, such rights as were given her, the testator not fearing that she would use any more than was proper, and then, at her death, he providing for her funeral expenses out of his estate; whatever was left, the executor, the trustee, should divide. The estate was to be kept together, its title in the executor, its physical custody in the widow, its accumulation was to continue, the widow was to take what she chose for her support and comfort, and whatever, at her death, was left, be it principal or interest, was to be divided by the executor. It seems to me there can be no doubt as to the intention of the testator. lie did not design to give his wife either the principal or interest as such, but whatever she needed for her comfort and support, she being tire judge. She could take out from the estate as a whole, but what she did not take out, what remained at her death, was to go to others. The same principle, exactly, as a question of intent, as would have existed had the whole fund been deposited in bank at interest, with the right to the widow to draw *160as she chose for certain purposes, and what she did not draw to go, at her death, to others.

It remains to consider whether there is any legal principle to interfere with the operation of the intent of the testator as above indicated. The case of Smith v. Van Ostrand (64 N. Y., 218) is authority for the proposition, that where there is a pecuniary legacy to a widow for her support, with power to use such part of the principal as may be necessary for that purpose, and 'remainder over, such remainder is valid, although the fund is placed in the possession of the first taker, and the bequest over will carry whatever is left, not used by the first taker. The conditional power of disposition in the first taker does not render the gift over repugnant and therefore void. That action was trover by the remainderman for the security which represented the balance of the fund left and such form of action was sustained. If the gift over. of the balance of the principal was good, the gift of the balance of the principal and interest, if that was the intent of the testator, would also be good, unless there is a legal objection to such an accumulation. Such objection I do not understand to be made in this case. There would be none at common law (Bryan v. Knickerbocker, 1 Barb. Ch., 409), or under our statute. The first taker, as far as she had control, would be a trustee for specific purposes. .It was her duty to preserve the identity of the fund. She did so, and left the property in such shape, that the holder of the legal title, the executor of her husband, could immediately at her death retake and resume the custody that followed the legal right to control.

I see nothing that will interefere with carrying out the intent of the testator. It follows that the plaintiff was entitled to no portion of the fund.

Judgment should be affirmed, with costs.

Judgment affirmed, with costs.