Gillespie v. Miller — 5 Johns. Ch. 21

Majority

p. 21

Gillespie and others, executors of Gillespie, against Miller.

October 26th.

Headnote

A gift for life of a chattel, is a gift of the usufruct only, except as to such articles, the use of which consists in the consumption: and there may he a limitation over hy will, of a chattel interest, after a life estate therein.

As where a testator devised his house and lot to his wife, also all hisper sonal property, and also the rents and profits of his house and farm at JV'., for her support during her natural life; and after her decease, gave and devised the same to his brother S., in fee, chargeable with certain legacies: Held, that the wife took the «se only of th ^personal estate, which after her decease went to S., the brother of the testator.

THE bill was filed by the plaintiffs, as executors of Samuel Gillespie, the brother and residuary legatee of William Gillespie, deceased, against the defendant, as the surviving executor of William Gillespie, for an account of the personal estate, 8zc. The will of William Gillespie was dated February 13, 1813; and the material parts of it were as follows : “ First, I give and bequeath to my beloved wife, Mary Gillespie, my house and lot in Smith-street, in the village of Newburgh, &c. Also, I give to my said wife, Mary Gillespie, all my personal property which shall remain, after paying funeral charges and other expenses; also, the yearly income, arising by rents from and out of my house and farm at Neely Town, for her support during her natural life, she making no waste or destruction thereupon; and after her decease, I give and devise the same to my brother Samuel Gillespie, and to his heirs, &c. enjoining him or his heirs, in consideration thereof, to pay the following sum or sums of money as legacies,” specifying the particular legacies.

The testator made his wife Mary Gillespie, his brother Samuel Gillespie, and the defendant, executors of his will.

The widow, and the two other executors all qualified ; and the widow took possession of the personal estate, which she assigned and delivered to the defendant, in consideration hat he would allow her a certain annuity for life. She

p. 22

died soon after, and the defendant cliamed to hold the property as his own.

The only question in the cause which arose on the construction of the will of William Gillespie was, whether the widow took an absolute estate in the personal property, or only the use of it during her natural life.

B. Robinson, for the plaintiffs.

J. Radcliff, for the defendant.

The language of the will is perfectly clear and definite. The respective devises and bequests to the wife, are all connected by the word also, and subject to one and the same limitation. The testator devises to her his house and lot in the village of Newburgh ; also, all his personal property, also, the rents and profits of his house and farm at Neely Town ; and after her decease, he gives and devises the same to his brother, Samuel Gillespie, in fee,chargeable with certain legacies. . There seems to be no room for any other construction. The law admits of a limitation over by will of a chattel interest, after a life estate in the same. A gift for life of a chattel, is a gift of the usufruct only, and the only exception to the rule seems to be in the case of such articles as corn, hay, &c. of which the use consists in the consumption. (3 Vesey, 311. 3 Merivale, 194, 195.) When the defendant accepted of an assignment and delivery of the personal estate of the testator, from the widow, he accepted it with knowledge of the will, for he was one of the executors.

I shall, accordingly, direct a reference to a master, to ascertain and report the amount of the personal property so assigned to the defendant, and shall decree that he account for the same, with interest from the death of the widow, for such part thereof as may have been converted into money, after making all necessary allowances for what may have been appropriated by the defendant for her support.

Order accordingly.