Gillespie v. Miller

5 Johns. Ch. 21

• Court: New York Court of Chancery
• Decided: October 26, 1820
• Status: Published

Opinion

The Chancellor.

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.