DAVIE, S.

This is a proceeding for the judicial settlement of the accounts of the executor of the will of Isaac H. Beach, who died April 23, 1891, leaving him surviving his widow and six children, and real estate of the value of $6,000, and personal property to the amount of about $2,000. Such settlement necessitates a construction of certain portions of the will, and the widow files objections to various items of the account. The will is very inartistically drawn and it is no easy task to determine the actual intent of the testator therefrom. The disposing portion of said will is in the following form: "First, after all my lawful debts are paid and discharged I give and bequeaths to my wife, Hannah M. Beach, all of my personal property that I shall be possessed of at the time of my death, and all of my household goods, and the use of my real estate during her natural life. But I will that she shall keep the buildings on said real estate in good repair, and pay all taxes on the same. 2. To my daughter, Mabel L. Beach, the organ that is now at my house, after the death of my wife I give. 3. To my son, Benjamin C. Beach, the sum of $500. 4. To my son Willey E. Beach, the sum of $500. 5. The balance of all my property of every kind, name and nature I will shall be equally divided to share and share alike between all of my six children, namely Benjamin C. Beach, Willey E. Beach, Rosetta E. Ryder, Clara E. Cagwin, Ella L. Vedder, Mable L. Beach."

The questions raised are, first, does the widow take the personal estate, absolutely or simply a life estate therein, and second, when are the two $500 legacies payable?

Various rules of construction have been formulated, but the chief solicitude of courts, in construing wills, is to ascertain the actual intent of the testator and carry the same into effect as far as possible. The testator, in this case, was worth about $1,000 at the time of his marriage with the contestant; they lived together as husband and wife for many years, and the balance of his estate was accumulated by their joint industry and frugality. Contestant is now fifty-seven years of age; hence it would seem that the testator would very naturally desire, in the first place, to make some certain and ample provision for the maintenance of his wife during the time she might survive him, but to do so in such a manner as not to jeopardize the rights of his children; how could such a result be better accomplished than by giving the wife the use of the entire estate during her life with provisions for its equitable distribution among his children, after her death. The evidence shows that the annual rental value of the real estate is $350. The income from the personal estate would increase thus amount somewhat; this would seem to be a very moderate provision for the maintenance of the widow; such a disposition of the personal estate, however, would seem to meet the approval of a careful, prudent man like testator, rather than an absolute gift of the same to her thereby endangering the rights of the children through the possible improvidence or lack of prudence incident to the advanced age of the widow. Whether the provisions of this will are susceptible of the construction suggested, depends entirely upon the use made of the term "during her natural life." Whether such term is held to relate to the entire preceding sentence or simply to the single clause "and the use of my real estate." Had the words "the use of" been omitted from such clause, the ordinary interpretation of the entire sentence would make the words of limitation "during her natural life" applicable to the entire bequest. Areson v. Areson, 3 Denio, 458; Van Allen v. Mooers, 5 Barb. 110; Carpenter v. Carpenter, 2 Dem. 534.

It is urged on the part of the contestant, that the words "the use of" coupled with the disposition of the real estate and not with that of the personal property, indicates a design on the part of the testator, to convey a greater estate in the latter than in the former; that had he intended to limit the bequest of the personal property in the same manner as the real estate, he would have used the same words of limitation "the use of" in both instances; that this difference in phraseology takes the case out of the operation of the rule of interpretation above cited. While fully recognizing the force of this suggestion, yet in view of all the attendant circumstances, the extent of the estate, the habits and mode of life of the contestant, and the character of the other bequests in said will, I am of the opinion and must hold, that it was the intention of the testator, to give to the widow simply a life interest in said personal estate.

The next question relates to the bequest of the organ to the daughter Mabel. The preceding portions of the will disposes, in terms, of "all the personal property and household furniture." This would of course carry the organ were it not for the subsequent specific bequest thereof to the daughter; the two provisions of the will are absolutely irreconcilable so far as the disposition of the organ is concerned; this being the case, the latter provision must prevail. VanNostrand v. Moore, 52 N.Y. 12; Chrystie v. Phyfe, 19 id. 344. Consequently the daughter takes the organ absolutely and is entitled to the immediate possession thereof.

The conclusion already arrived at, necessarily determines the remaining question as to the time of payment of the two $500 legacies, the time of payment is dependent entirely upon the use made of the expression "after the death of my wife." It is urged on part of these legatees, that this clause should be read in connection with the bequest of the organ, but I cannot adopt such view, but must hold that such clause is to be read in connection with and as a part of each of the following bequests; there is nothing in the will or surrounding circumstances indicating an intent on testator's part to make these legacies immediately payable out of the real estate; and having given the widow the use of the personal estate during her lifetime it could not be available for payment of legacies or distribution until the termination of her life estate. In my judgment the only reasonable construction which can be given to this will is to hold that the widow takes a life estate in all the personal property except the organ; that the organ passes to the daughter absolutely; that upon the death of the widow the two $500 legacies become payable and the residuum subject to distribution.

The account filed, shows that the executor has entered into an agreement in writing for the expenditure of $400 for a monument to be placed at the grave of the testator; the widow objects to this expenditure as unreasonable and excessive; of course no arbitrary rule has been or can be laid down establishing the question of reasonableness of funeral expenses. Each case must be determined from its own particular circumstances.

A reasonable expenditure for a tombstone is regarded as a legitimate item of funeral expenses to be allowed to the executor upon his accounting. Ferrin v. Myrick, 41 N.Y. 315; Tickel v. Quinn, 1 Dem. 425. So the only question in this case is whether the sum named was reasonable or not. In one case it was held that an expenditure of $500 for such purpose where the estate did not exceed $8,000 was unreasonable and was not allowed against the heirs. Owens v. Bloomer, 14 Hun, 296. In case of an estate of $2,600, it was held that an expenditure of $250 was not unreasonable. Matter of Erlacher, 3 Redf. 8. In case of an estate of $1,200, that $150 was a reasonable expenditure. Emans v. Hickman, 12 Hun, 425. While the expenditure made by the executor in this case would seem to reach the limit, yet in consideration of the fact that the estate amounts to $8,000; that the rights of creditors are not impaired by the expenditure; that the executor consulted with several of the legatees before making the contract and no objection is made to such expenditure by any one but the widow, that the executor, as such, evidently in good faith has contracted for the monument, that the monument itself has been prepared and is now nearly ready for delivery, I am unable to see how the interests of this estate are to be subserved by holding that this expenditure was unwarranted. Matter of Laird, 42 Hun, 136.

Contestant also objects to the payment of a certain note by the executor to one D.P. Howes, to the amount of $152.65; upon the grounds, first, that the right of action thereon against the testator was barred by the Statute of Limitations before his death, and second, that the debt for which said note was originally given was that of the executor himself.

The contestant called and examined the executor as a witness and established the fact by him that such note was originally given for his individual benefit and that the indorsements thereon were for moneys which he had himself paid; the note itself bears date August 8, 1881, and the last indorsement thereon is of the date of March 28, 1890, so that if said note was not outlawed it is in consequence of the partial payments made thereon. This state of facts unexplained, would show such payment by the executor to have been unauthorized. A partial payment by one of the makers of this note without the consent or authority of the other would not prevent the statute running against the one not paying; now the executor would not have been a competent witness in the first instance to testify to the transaction which took place between himself and deceased regarding such payment or the original inception of the note (§ 829, Code Civ. Proc.), but the contestant having examined the executor as a witness and proved by him a sufficient portion of said transactions to establish his individual liability, removed such disability permitting him to testify to the entire transaction for the purpose of relieving himself of such disability. Nay v. Curley, 113 N.Y. 575; Davis v. Gallagher, 55 Hun, 593.

The further examination of the executor shows, not only, that the money paid and indorsed on the note was furnished by the testator with the express instructions that it should be so used, but also that in the making of the note originally, testator gave the proceeds thereof to the executor to aid him in buying a team; that testator in fact gave the note to the son and designed to pay the same himself; these facts justify the payment of the note out of the estate.

Contestant also objects to the payment of the item of twenty-four dollars to Mr. Whiting. A portion of this sum is a proper charge against the estate; the appraiser's fees for two days at three dollars per day is a proper and reasonable charge. The witness fees of Mr. Whiting and wife from their residence to Franklinville to attend the probate of the will of deceased amounts to three dollars and seventy-six cents, which is also a proper charge. The balance of said item appears to be for services purely clerical in their character and such as the executor could and should have performed himself. If the executor saw fit to employ another to transact for him the usual and ordinary duties of his trust and for which the commissions were designed as full compensation, the expense of procuring such services becomes his own debt and cannot be charged to the estate. Hall v. Campbell, 1 Dem. 415; Matter of Carman, 3 Redf. 46; Ward v. Ford, 4 id. 34.

The remaining question arises out of the following facts: On the 10th day of December, 1891, the executor sold certain personal property belonging to the estate at public auction. The terms of the sale were cash or good indorsed paper running ten months. At the sale, certain property was sold to one Robinson; among other things one horse for forty-one dollars, and one mowing machine for twenty-eight dollars. The executor himself bid off one spring wagon for thirty-eight dollars, and on the same day sold it to Robinson; on the day after the sale the executor prepared a note for the amount of Robinson's purchase and requested him to sign it and furnish an indorser; Robinson did not do so. A short time thereafter the executor again presented the note to Robinson who then refused to furnish an indorser. At the same time Robinson was indebted to the executor personally to the amount of $125, and on December 23, 1891, the executor took a chattel mortgage upon this property which Robinson had so purchased, to secure his own individual debt. After Robinson had refused to give the indorsed note, the executor sold his mortgage and claim thereby secured, to one Dake. Nothing farther appears to have been done in this matter until the executor was cited to show cause why he should not judicially settle his accounts; thereupon the executor procured Dake to satisfy said mortgage and to take another upon Robinson's crops, and thereupon took the property back from Robinson; made another public auction and sold the horse thereat for twenty-five dollars, the mowing machine for twelve dollars, and the spring wagon for twenty-eight dollars and thirty-five cents, or forty-one dollars and sixty-five cents less than the same property sold for at the first sale; and contestant urges that the executor should be charged with the deficiency. If the executor immediately upon the refusal of Robinson to give the indorsed note had reclaimed and resold the property, he could not have been subject to the imputation of bad faith nor held accountable for any deficiency; but permitting said property to remain in Robinson's possession until the month of June, 1892, allowing him to use the same thereby diminishing its value, knowing all the time that Robinson was irresponsible, yet holding a chattel mortgage upon this identical property to secure his own debt, doing nothing to enforce collection of the claim or to recover said property, presents an entirely different phase; an executor is bound to exercise active diligence in the management of the estate and if loss occurs through his negligence he becomes personally liable as for a devastavit. Harrington v. Keteltas, 92 N.Y. 40; Hasbrouck v. Hasbrouck, 27 id. 182. In this case, the executor should account for the entire amount said property sold for at the first sale.

The account filed should be modified in the particulars suggested and a decree entered, judicially settling the same as so modified.