Where a testator gave by his will to his wife, all his estate, both real and personal, during her widowhood, and "all the personal estate that may remain after the decease or marriage of my said wife," over to his brothers and sisters in fee, and the personal estate was proved to consist, in part, of household furniture, farming utensils. and farm stock, the gift over was held not to be void for indefiniteness; the words, — "that may remain after the decease or marriage of my said wife," — being construed to refer to such of the stock as survived her death or marriage, and so much of the furniture and farming utensils as was not then worn out by use. In such case, the wife being executrix of the will, and not being sole or residuary legatee, was required to give bond in the ordinary form, to return an inventory, c., and not allowed to give bond to pay debts and legacies. The bond required by the Court of Probate below, being in more than double the value of the personal property, was reduced to that amount; and held not to be a continuing security to those entitled to the personal property, in remainder, but to be discharged upon the widow's settling her final account with the Court of Probate, in which she might credit herself with the personal property retained by her, as legatee during widowhood. In such case, the widow refusing to give the bond required by the decree of the Court of Probate, but appealing therefrom, the court properly appointed a custodian of the personal property, as well for the security of those interested therein, as for the care and management of the same.
AMES, C.J.
It is certainly true, that in numerous instances, a bequest of " what shall remain" or " be left," at the decease of a prior legatee, has been held to be void for uncertainty. The expression is, however, susceptible of explanation, where, as here, the property, or part of it, consists of household furniture, farming utensils, and farm stock, by considering these words as referring to the expected diminution of the property from its perishable nature, or by the use and wear of the first taker. "Such, it is clear," says Mr. Jarman, "would be the construction, if the property, whatever were its nature, were given to the first taker expressly for life; indeed, there is not, it is believed, any case in which such expressions have been held to render the gift void, where the prior interest was expressly limited in such terms." 1 Jarman on Wills, 321, 322; Cooper v. Williams, Prec. Ch. 71, pl. 64; Gibbs v. Tait, 8 Sim. 132; Surman v. Surman, 5 Madd. 123.
In the case before us, there is an express limitation of the personal, as well as of the real estate, to the wife, during widowhood, and an express bequest over, to his brother and sisters and their children, of "all the personal estate that may remain after the decease or marriage of my said wife." The intent of the testator, as to the respective estates which his wife and his heirs at law should take in his personal property, is clearly expressed; and considering the nature of a portion of this property, there is no uncertainty as to what is bequeathed over, since the description of it, as that which "may remain after the decease and marriage of my said wife," may reasonably be supposed to refer to such of the farm stock as survives her marriage or death, or so much of the furniture and farming utensils as is not worn out by use, when either of those contingencies may determine the estate of the wife.
The estate of the wife being expressly defined as, during widowhood, no enlargement of her estate can be implied from the charge upon her, personally, of the testator's debts and funeral expenses; such implication only arising, where the will leaves the estate of the person charged, indefinite. King v. Cole and another, 6 R.I. Rep. 584.
Upon this construction of the will, the appellant is, in no sense, a residuary legatee of the personal estate of her husband; the residue of such estate, in the sense above explained, passing, by the will, subject to her estate therein, to the testator's brothers and sisters, or their representatives.
The decree of the Court of Probate below was, therefore, correct, in requiring her to give a bond, as executrix, in the ordinary form, to return an inventory, c. Upon the proof before us, and which might, if they had inquired, have been before them, we think that they have required the bond, contrary to the custom, in more than double the value of the property, and shall order it to be diminished to the sum of four thousand dollars.
Both parties, as it seems to us, give too much importance to the amount of this bond. It will be no continuing security to those entitled in remainder, for their interest in the testator's personal property; but, upon the settlement by the executrix of her final account with the Court of Probate, in which she will credit herself with this property, as retained by her as legatee during widowhood, (so far as not expended in paying debts, funeral charges, the erection of gravestones, and the expenses of settling the estate,) the condition of the bond will have been satisfied, and the sureties will be discharged.
We see no reason to doubt the propriety of the other decree of the Court of Probate, appointing a custodian of the personal property, pending an appeal, in order to the due security of all interested therein, as well as for its due care and management, and order the appeal from that decree to be dismissed with costs.