Colt, J.
The bill alleges that the plaintiff, as widow, is entitled absolutely to a specified portion of that part of the estate which has been paid by the executors, under a decree of the probate court, to the trustees appointed under the St. of 1861, c. 164.
The trustees, under this statute, are entitled to receive and hold only that amount, in excess of ten thousand dollars, the income of which is to be paid to the widow during life. And it may be that the decree of the probate court would ordinarily be conclusive in fixing a sum the income of which is to be so paid. In this case, by an agreement entered into in writing, before the probate court, between the plaintiff, the executors of the estate, and the trustees, for the purpose of obtaining without delay a decree distributing the property in kind, it was arranged that the amount in controversy, stated to be one third of the income received by the executors, should be paid to the trustees, the plaintiff insisting upon all her rights to take the same absolutely and discharged of any trust under the statute. The decree is based upon and refers to this agreement; and, under the circumstances, we think the objection that the plaintiff’s only remedy is by appeal from the decree of distribution is not weL taken.
The whole of the plaintiff’s share of the estate, under this agreement and distribution, is now in the hands of the trustees, [53]*53in trust, either to pay the income of the whole to the plaintiff for life, or, depending upon the decision of the question presented here, to surrender to her the part originally received by the' executors as income. And in this respect the* bill is not demurrable. All parties interested in the fund are joined as defendants; and the decree of this court is asked defining and enforcing the trust thus created.
The more important question is, as to the construction which should be given to the statute, as it respects the time from which the income of the estate held in trust for the widow should be computed. On the' part of the defendants, it is claimed that she can only take that which accrues upon the principal sum after the estate is settled and the fund is transferred to trustees. The plaintiff, on the other hand, insists that she is entitled to the whole income from the death of the testator.
The statute, in its first clause, enacts that, “when a man dies,” his widow, on waiving the provisions of the will, shall be entitled to such portion of the personal estate as she would have received if he had died intestate. This is followed by the proviso, that, if the share to which she would be entitled shall exceed ten thousand dollars, she shall receive that amount in her own right, and the income of the excess “ during her natural life.” If there were no proviso in the statute, or if her share should be less than ten thousand dollars, she would take one third of the personal estate as it was a.t the time of the death of her husband, subject to the payment of debts and charges of administration. The exact amount would indeed be ascertained only upon the final settlement; but delays in administering the estate, and making final distribution, would not, so far as this question of income is concerned, injuriously affect her, because in the end principal and income must alike be regarded as assets for a distribution in which she would take her one third.
The act of 1861 is a substitute for § 24 of the Gen. Sts. c. 92, and repeals it in express terms. By that section the widow took the entire estate in the share to which she would have been entitled if her husband had died intestate.
[54]*54In the absence of express words to the contrary, it must be held that the true intent of the proviso is, to give to the widow, in the contingency named, a life estate only, instead of the absolute title as before, in a portion of the share which comes to her, without substantially diminishing by its operation the quantity of the share, made up of the ten thousand dollars and the life estate, to which she would have been entitled. To sustain the construction asked for by the defendants would be to add the accumulations of income, during the time occupied in settling the estate, to the trust fund, in prejudice of the widow, and to the benefit of the future taker ; to give her the income, not for her natural life, but for so much of it as remained after the settlement of the estate.
It is true that this view of the statute would give her the income upon the ten thousand dollars as well, and there is no good reason why it should not, except that the words of the act expressly confine the income she is to receive to that which is derived from the excess.
As affording further evidence of the intention of the statute, it is to be observed that there is no positive requirement for the appointment of trustees. By § 2, the widow, or any one interested, may apply, and the judge may appoint them; but if none are appointed, the income will be payable directly from the executors, who may hold the interest for an indefinite period under a trust commencing not with the settlement of the estate, but with their appointment as executors.
It is just and reasonable that the income which the statute secures for the widow should commence when the widowhood commences, at the death of her husband. It is analogous to dower, and by way of provision for her support.
The rule we adopt follows the decisions of the courts in cases strongly analogous. By a familiar principle of interpretation, the state of the law as it existed at the time of the passage of an act may be taken into view in giving effect to its terms and disclosing the intention of the lawmakers. It has long been held in England, whatever may have been the doubts formerly existing, that, in the case of a bequest of a life estate in a [55]*55residuary fund, where no time is specified for the commencement of the interest, or the enjoyment of the use or income, the legatee for life is entitled to the income of the clear residue, as afterwards ascertained, to be computed from the time of the death of the testator. Angerstein v. Martin, Turner & Russell, 234. The same rule was applied by this court in Lovering v. Minot, 9 Cush. 151, where it was held that, although it could not be immediately known, either what the residue would be, or what would be received as income therefrom, yet, when the funds were transferred from the executors to the trustees, it was the duty of the trustees to distribute so much as was received as income, to the tenants for life. So in Lamb v. Lamb, 11 Pick. 371, the bequest of the “ improvement ” of the residue, to a widow during widowhood, was held to entitle her to the income from the death, and not from the time the estate was settled in the probate court; the words “ after the settlement of my estate,” which were used in the will, being construed not to fix the date of her title, but only to defer the time of its enjoyment. See also Pollard v. Pollard, 1 Allen, 490. The same rule was. made part of the positive law of the state as early as 1848, and is reenacted by Gen. Sts. c. 97, § 23. Such is also the law of New York. Williamson v. Williamson, 6 Paige, 298. Cooker. Meeker, 36 N. Y. 15.
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Colt, J.
The bill alleges that the plaintiff, as widow, is entitled absolutely to a specified portion of that part of the estate which has been paid by the executors, under a decree of the probate court, to the trustees appointed under the St. of 1861, c. 164.
The trustees, under this statute, are entitled to receive and hold only that amount, in excess of ten thousand dollars, the income of which is to be paid to the widow during life. And it may be that the decree of the probate court would ordinarily be conclusive in fixing a sum the income of which is to be so paid. In this case, by an agreement entered into in writing, before the probate court, between the plaintiff, the executors of the estate, and the trustees, for the purpose of obtaining without delay a decree distributing the property in kind, it was arranged that the amount in controversy, stated to be one third of the income received by the executors, should be paid to the trustees, the plaintiff insisting upon all her rights to take the same absolutely and discharged of any trust under the statute. The decree is based upon and refers to this agreement; and, under the circumstances, we think the objection that the plaintiff’s only remedy is by appeal from the decree of distribution is not weL taken.
The whole of the plaintiff’s share of the estate, under this agreement and distribution, is now in the hands of the trustees, [53]*53in trust, either to pay the income of the whole to the plaintiff for life, or, depending upon the decision of the question presented here, to surrender to her the part originally received by the' executors as income. And in this respect the* bill is not demurrable. All parties interested in the fund are joined as defendants; and the decree of this court is asked defining and enforcing the trust thus created.
The more important question is, as to the construction which should be given to the statute, as it respects the time from which the income of the estate held in trust for the widow should be computed. On the' part of the defendants, it is claimed that she can only take that which accrues upon the principal sum after the estate is settled and the fund is transferred to trustees. The plaintiff, on the other hand, insists that she is entitled to the whole income from the death of the testator.
The statute, in its first clause, enacts that, “when a man dies,” his widow, on waiving the provisions of the will, shall be entitled to such portion of the personal estate as she would have received if he had died intestate. This is followed by the proviso, that, if the share to which she would be entitled shall exceed ten thousand dollars, she shall receive that amount in her own right, and the income of the excess “ during her natural life.” If there were no proviso in the statute, or if her share should be less than ten thousand dollars, she would take one third of the personal estate as it was a.t the time of the death of her husband, subject to the payment of debts and charges of administration. The exact amount would indeed be ascertained only upon the final settlement; but delays in administering the estate, and making final distribution, would not, so far as this question of income is concerned, injuriously affect her, because in the end principal and income must alike be regarded as assets for a distribution in which she would take her one third.
The act of 1861 is a substitute for § 24 of the Gen. Sts. c. 92, and repeals it in express terms. By that section the widow took the entire estate in the share to which she would have been entitled if her husband had died intestate.
[54]*54In the absence of express words to the contrary, it must be held that the true intent of the proviso is, to give to the widow, in the contingency named, a life estate only, instead of the absolute title as before, in a portion of the share which comes to her, without substantially diminishing by its operation the quantity of the share, made up of the ten thousand dollars and the life estate, to which she would have been entitled. To sustain the construction asked for by the defendants would be to add the accumulations of income, during the time occupied in settling the estate, to the trust fund, in prejudice of the widow, and to the benefit of the future taker ; to give her the income, not for her natural life, but for so much of it as remained after the settlement of the estate.
It is true that this view of the statute would give her the income upon the ten thousand dollars as well, and there is no good reason why it should not, except that the words of the act expressly confine the income she is to receive to that which is derived from the excess.
As affording further evidence of the intention of the statute, it is to be observed that there is no positive requirement for the appointment of trustees. By § 2, the widow, or any one interested, may apply, and the judge may appoint them; but if none are appointed, the income will be payable directly from the executors, who may hold the interest for an indefinite period under a trust commencing not with the settlement of the estate, but with their appointment as executors.
It is just and reasonable that the income which the statute secures for the widow should commence when the widowhood commences, at the death of her husband. It is analogous to dower, and by way of provision for her support.
The rule we adopt follows the decisions of the courts in cases strongly analogous. By a familiar principle of interpretation, the state of the law as it existed at the time of the passage of an act may be taken into view in giving effect to its terms and disclosing the intention of the lawmakers. It has long been held in England, whatever may have been the doubts formerly existing, that, in the case of a bequest of a life estate in a [55]*55residuary fund, where no time is specified for the commencement of the interest, or the enjoyment of the use or income, the legatee for life is entitled to the income of the clear residue, as afterwards ascertained, to be computed from the time of the death of the testator. Angerstein v. Martin, Turner & Russell, 234. The same rule was applied by this court in Lovering v. Minot, 9 Cush. 151, where it was held that, although it could not be immediately known, either what the residue would be, or what would be received as income therefrom, yet, when the funds were transferred from the executors to the trustees, it was the duty of the trustees to distribute so much as was received as income, to the tenants for life. So in Lamb v. Lamb, 11 Pick. 371, the bequest of the “ improvement ” of the residue, to a widow during widowhood, was held to entitle her to the income from the death, and not from the time the estate was settled in the probate court; the words “ after the settlement of my estate,” which were used in the will, being construed not to fix the date of her title, but only to defer the time of its enjoyment. See also Pollard v. Pollard, 1 Allen, 490. The same rule was. made part of the positive law of the state as early as 1848, and is reenacted by Gen. Sts. c. 97, § 23. Such is also the law of New York. Williamson v. Williamson, 6 Paige, 298. Cooker. Meeker, 36 N. Y. 15.
At the time when the statute of 1861 was passed, therefore, it had long been established that, in the settlement of estates under a will, title to the income of a share of the estate for life was title to all the income during all the life; and that, when such income has been received by the executors, and paid over to the trustees, for the tenant for life, there is no legal difficulty in separating the income from the principal, and paying it to the tenant for life. It cannot be held that a statute relating to the same subject, and containing no express or inconsistent provisions, intended to adopt a different and unusual rule.
' The case of Sullings v. Richmond, 13 Allen, 277, cited by the defendants, is not in conflict with the result here reached. It arose under the St. of 1854, c. 428, which limited the widow’s share in her husband’s estate, in such cases, to an amount not [56]*56exceeding ten thousand dollars; and it was well held that her distributive portion must be limited to that amount, and that income received by the executors could not be added to it.
Upon the facts stated in the bill, therefore, the plaintiff would be entitled to a decree in her favor; and the entry must be
Demurrer overruled.