Delaware County NyArchives Court.....French, Frances, Matter Of - Will Of Phebe Hitchcolk 1889
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Source: Reports Of Cases - New York
Written: 1889

Fourth Department, May Term, 1889.

In the Matter of the Final Accounting of FRANCES A. FRENCH, as Executrix of the 
Will of PHEBE E. HITCHCOLK.

Surrogate — when authorized to give a construction to provisions of a will 
relating to real property.

Where a testatrix, by her will, gives her personal estate to her husband to do 
with it as he shall think best during his lifetime, with power to use so much 
thereof as he may wish during his lifetime, and directs that after his death 
whatever then remains in his hands up to a certain amount shall go to the 
daughter of the testatrix, the will operates on whatever is in the hands of the 
husband, constituting a portion of such estate, at the time of his decease. 

Such portion of the estate remaining in the hands of the husband at the time of 
his death cannot be affected or disposed of by his will.

Matter of Cager (111 N. Y., 343) followed.

Where it is necessary, in order to determine questions arising on the 
accounting, of an executor, to give a construction to provisions of the will of 
the testator which refer to both real and personal estate, the surrogate has 
jurisdiction, as incident to his right to entertain such proceeding, to construe 
such provisions of the will.

Appeal by Augusta H. Simpson from a decree made by the surrogate of Delaware 
county on the 5th day of April, 1888. 

Phebe E. Hitchcolk died on the 31st day of March, 1886, leaving a will dated 
July 22, 1884, in which were the following provisions:

"First. I give, devise and bequeath unto my husband, John Hitchcolk, all of my 
real estate, situate in said town of Davenport, to do with as he shall think 
best.

"Second. I give, devise and bequeath unto my said husband all and every kind of 
my personal property, consisting in part of mortgages, bonds, notes and money, 
etc., and wish my said husband to do with said property as he shall think best 
during his lifetime, without any let or hindrance from any source whatever.

"Third. I give, devise and bequeath unto my daughter, Mrs. F. A. Churchill, the 
sum of eight thousand dollars, to be paid her out of my real and personal estate 
at and after the death of my said husband, provided there be that amount in my 
husband's hands at his decease.

"Fourth. I wish it to be distinctly understood that my said husband may use so 
much of my real and personal estate as he may wish to during his lifetime, and 
at his death, if there be the sum of eight thousand dollars remaining in his 
hands, that that amount be paid to my daughter, Mrs. F. A. Churchill; and if 
there be not the sum of eight thousand dollars in his hands, then, and in that 
case, it is my wish that my said daughter have and receive whatever then remains 
in my said husband's hands, to do with as she shall think best.

"Fifth. I do hereby nominate and appoint and constitute my husband, John 
Hitchcolk, my executor, and my daughter, Mrs. F. A. Churchill, now of the city 
of New York, my executrix, of this my last will and testament."

John Hitchcolk, the husband of Phebe E. Hitchcolk, died on 10th June, 1886, 
leaving a will bearing date May 5, 1886, in which, after divers provisions not 
material here, he gave all the rest of his property, real and personal, to his 
two daughters, Mrs. French, formerly Churchill, and Mrs. Simpson, share and 
share alike, and appointed them executrices. In this will no reference was made 
to the will of Mrs. Hitchcolk, or to the property therein named. The will of 
Mrs. Hitchcolk was admitted to probate, as a will of real and personal property, 
on 26th July, 1886, and letters were issued to the executrix. The will of John 
Hitchcolk was, in like manner, admitted to probate on 27th July, 1886, and 
letters were issued to the executors. After the death of Mrs. Hitchcolk her 
husband did not use or expend for himself or his benefit any part of the 
personal property of his wife, and the securities in the hands of the executrix, 
and accounted for on the accounting, are the original securities owned by Mrs. 
Hitchcolk at her death, and that were passed over to the executrix without 
change. After the payment of debts and expenses there remained in the hands of 
the executrix, of the personal estate of Mrs. Hitchcolk, the sum of $2,606.22. 
This amount the surrogate decreed should be paid to Mrs. French upon the legacy 
to her of $8,000.

Edwin D. Wagner, for the contestant, appellant.

Hallock, Jennings & Chase, for Frances A. French, executrix, respondent.

Merwin, J.:

The question in this case is whether John Hitchcolk, under the will of his wife, 
became the absolute owner of her personal estate, or was vested with the power 
to dispose of it by his will. If there was such a power, his will was in form 
sufficient to operate as an execution of it and pass the title to the residuary 
legatees therein named. (Hutton v. Benkard, 92 N. Y., 295.)

Mrs. Hitchcolk, by the second clause of her will, gave to her husband all her 
personal property, wishing him to do with it as he should think best during his 
lifetime. By the third clause she gave to her daughter, then Mrs. Churchill, 
$8,000, to be paid her out of her real and personal estate, at the death of her 
husband, provided there was that amount in her husband's hands at his decease. 
By the fourth clause she wishes it to be distinctly understood that her husband 
might use so much of her real and personal estate as he might wish to during his 
lifetime, and that at his death whatever then remained in his hands, to the 
extent of $8,000, should be paid to her daughter.

In Greyston v. Clark (41 Hun, 125), by the will there under consideration, the 
testator in the first clause gave and devised all his real and personal property 
to his wife, absolutely to have and to hold for her own use and benefit forever, 
and with full power and authority to sell or mortgage as she thought proper. In 
the second clause the testator provided that, on the death of his 
wife, "whatever property that she may die seized of that belonged to me and 
remains in her by virtue of this will, shall be divided" among others named. It 
was held that the widow had no power to dispose of any portion of her husband's 
estate by her will, and that so much thereof as remained in her hands undisposed 
of at the time of her death passed under her husband's will to the other parties.

In Wells v. Seeley (47 Hun, 109) the testator gave all the rest and residue of 
his estate to his wife, "to be held and used by her as she shall see fit and 
proper during the full term of her life, and at her death if any part of my said 
estate shall remain unexpended, then and in that case I give and bequeath such 
remaining portion" to other parties. It was held that the widow had a life 
estate in the residue, with the power to use such portion thereof as she should 
deem proper for her support during her life, and that the provision as to the 
remainder, if any remained unexpended, was valid.

In Matter of Cager (111 N. Y., 343), recently decided by the Court of Appeals, 
the testator gave all his estate, after the payment of debts, to his wife, "to 
be used and enjoyed and at her disposal during the term of her natural life," 
and what might, remain at her decease he gave to other parties. It was held that 
while the widow had the power to dispose of the corpus of the estate, such power 
was not absolute and unconditional, but was limited by the language devising the 
property for her use and enjoyment during her life, and did not give her the 
power of disposing of it by will. 

These cases seem quite analogous to the present. Here there is a gift of the 
personal estate to the husband to do with it as he shall think best during his 
lifetime, with power to use so much as he may wish during his life, and at his 
death whatever then remains in his hands, to the extent of $8,000, is given over 
to the daughter. The will operates in express terms on whatever is in the hands 
of the husband at his decease. That necessarily carries with it the idea that 
the husband by will cannot affect it. The intent on that subject seems very 
clear. The testatrix evidently contemplated that something would be left at her 
husband's death, but that there might not be $8,000. No provision is made for 
any excess over that amount. The inference is quite strong that none was 
contemplated. Many cases, earlier than those above referred to, have been cited, 
some of which are not entirely harmonious. It does not seem necessary to 
consider them here. The Cager case contains the latest expression of the views 
of the Court of Appeals, and that and the Greystone case are quite in point 
here. I am, therefore, of the opinion that the will of John Hitchcolk did not 
operate upon the balance of Phebe Hitchcolk's estate remaining at his death, but 
that such balance is properly applicable on the $8,000 legacy. The decree of the 
surrogate in that respect is, therefore, correct.

It is further claimed by the appellant that the surrogate had no right to 
construe the will as to the real property, and that he erroneously assumed to do 
so in deciding that whatever remained unused and unexpended of the property of 
said deceased, to the amount of $8,000, passed, on the death of said John 
Hitchcolk, to Frances A. French. The construction of the will was necessary to 
determine the questions arising on the accounting, and in such a case 
jurisdiction to construe a will attaches as incident to that proceeding. 

(Purdy v. Hayt, 92 N. Y., 450.) The real and personal were mingled in the 
provisions to be construed.

In order to determine the status of the personal, it was necessary to consider 
and pass upon the provisions referring to both real and personal. The real 
estate was not in question before the surrogate, and there is no specific 
adjudication about it. The decree affects only the personal estate, and whatever 
determination is made by the surrogate upon the question of construction relates 
very evidently, in its effect, only to the subject-matter then before the 
surrogate. The surrogate in this regard did not exceed his jurisdiction.

It follows the decree appealed from should be affirmed, with costs.

Hardin, P. J., and Martin, J., concurred.

Decree of the surrogate of Delaware county affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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