In re Gilbert's Estate

The testator died, April 21,1888, leaving Helena L. Gilbert, his widow', Edwin S. Gilbert, Milo 0. Gilbert, James A. Gilbert, and Joseph C. Gilbert, sons, and Josephine Bentley, daughter, by his former deceased wife, and George G. Gilbert, son, of full age, and Lena W. Gilbert, daughter,

It is claimed by the learned counsel for said Helena L. Gilbert, widow, George G. Gilbert, son, and by the special guardian and counsel for said Lena, minor, being children of the testator by his said second wife, that such will gives to the widow the absolute title to all the said real and personal estate, after payment of debts, funeral expenses, and expenses of administration, and that the use and possession of same was not limited to her life, and cites the following authorities: Campbell v. Beaumont, 91 N. Y. 465 ; Van Horne v. Campbell, 100 N. Y. 287 , 3 N. E. Rep. 316 , 771; Clarke v. Leupp, 88 N. Y. 228 ; Roseboom v. Roseboom, 81 N. Y. 356 ; Griswold v. Warner, 3 N. Y. Supp. 688 ; Leggett v. Firth, 6 N. Y. Supp. 158 . It is claimed by the counsel for the executors and other children'by the first wife of the testator, that the testator intended to and did by his will give to his widow only the use of his property, real and personal, after paying debts, funeral expenses, and expenses of administration, during her natural life, for her necessary support and maintenance, and at her death the remainder of his estate to his seven children, legatees named in his will, share and share alike, and cite the following authorities : In re French, 13 N. Y. St. Rep. 759 ; In re Verplanck, 91 N. Y. 439 ; In re Westcott, 16 N. Y. St. Rep. 286 ; Wager v. Wager, 96 N. Y. 164 ; Taggart v. Murray, 53 N. Y. 233 ; Van Vechten v. Keator, 63 N. Y. 52 ; McKeown v. Officer, 6 N. Y. Supp. 201 ; In re Fuller, 5 N. Y. Supp. 46 ; Black v. Williams, 4 N. Y. Supp. 243 ; Terry v. Wiggins, 47 N. Y. 512 ; Greyston v. Clark, 41 Hun, 125 ; Rose v. Hatch, 8 N. Y. Supp. 720 . While these authorities illustrate the general well-established principles governing the construction of wills, not one of them fully covers the exceptional state' of facts and circumstances to be considered in arriving at the real intention of the testator by this remarkable instrument. He made his will only a few days prior to his death. He left five children by his first wife, and two by his last. His family relations had always been pleasant, there being apparently no petty jealousy existing between his two sets of children, all of whom were well brought up and respectable. He had apparently no partiality for any of them. By their aid he had accumulated a handsome property. By the first paragraph of his will he gave the use of all his property to his wife during her life, an ample provision for her, and emphasized his intention by saying that such

I have ordered an appraisal of the personal property, which has been made and filed, and hold that the clause declaring that she shall not be subject to any accounting for the property of her deceased husband is nugatory and void, as against the policy of the law, and contrary to the whole context of the will. The case of Smith v. Bell, 6 Pet. 68 , in which the very learned -Chief Justice Marshall, of the United States supreme court, writes the opinion, appears to cover the whole line of legal controversy and argument in this case, and such authority is approved by our own court of appeals in the very recent case of Crozier v. Bray, reported in 120 N. Y. 366 , 24 N. E. Rep. 712 . The case quoted and decided by the United States supreme court came up from the seventh circuit and district court of Bast Tennessee; the property involved being goods and chattels consisting of a negro woman and her four children, all slaves. The will gave to the testator’s wife all his personal estate, “to and for her own use, benefit, and disposal, absolutely; the remainder of the said estate, after her decease, to be for the use of the said Jesse Goodwin , ” son of the testator. The court held that the wife took an estate only during her life, and the son took a vested remainder; yet in that case the words, “during the term of her natural life,” and “during her life-time,” appearing in the first and fourth clauses of this-will, were hot in that will, but the court held that the remainder of said estate after the decease of his wife, to be for the use of said Jesse Goodwin, were equivalent thereto. I direct decree holding that the widow in this case takes only a life interest and use of the personal property of her deceased husband, to hold same in trust for her necessary support and maintenance during life; and it appearing that this is only an intermediate accounting, and that the time for the presentation of claims against the estate has not expired, and that there are debts due the estate not paid, and all parties interested having appeared personally, or by attorney, and consenting, the further proceedings herein are adjourned to November 26,1890, and all questions relating to commissions and costs of the respective parties are reserved until that date.