FOURTH DEPARTMENT, JANUARY TERM, 1875. might have been prevented. It must not be inferred from these remarks, that I intend to cast any reflections upon the action of my brethren who have taken part in these proceedings. The papers accompanying the petition were sufficient to disarm suspicion, and to induce the court to order a reference to ascertain the actual condition of Beckwith. It was not the fault of the court that counsel deceived it, and imposed upon it affidavits as true, which he knew were untrue, although not known to be so by those who made them. A personal examination in conformity to the English practice, would have enabled the court to detect the imposition, and thus quash the proceedings at the very outset. Costs are not granted against a person who institutes proceedings to declare a person a lunatic and fails in them, if the prosecution has been in good faith.* The same rule is applied when the attorney of the lunatic fails in an application to traverse or supersede the commission. † Indeed, the question of granting or refusing costs, rests in the sound discretion of the court, and they will not be granted unless the proceedings are for the benefit of the lunatic, and are instituted and prosecuted fairly and in good faith. ‡ In re Conklin, § a solicitor appeared for Conklin (against whom proceedings had been commenced to declare him to be a person of unsound mind), to oppose the same, but Conklin was found to be a lunatic at the time of the retainer of the solicitor. The solicitor applied to the court for an order directing the committee to pay him his costs, incurred in such proceeding. The chancellor held the solicitor entitled to his taxable costs. He says: "As the person against whom the commission issued has been found to be a lunatic at the time of the retainer of the petitioner, the latter has no claim against the estate on the ground of contract, as he is not a creditor of the lunatic, who was incompetent to make a valid contract to pay him for opposing the commission. And, as a general rule, the court will not allow the costs of an unsuccessful opposition, as the party who is really a lunatic is not benefited thereby. This court may, however, in its discretion, allow costs for opposing the commission, * Brower v. Fisher, 4 J. C. R., 440. In the Matter of Folger, 4 J. C. R., 169. In re M'Clean, 6 J. C. R., 440; In re Tracy, 1 Paige 580; In re Van Cott, id., 489. § 8 Paige, 450. FOURTH DEPARTMENT, JANUARY TERM, 1875. where the fact of the lunacy is so much in doubt, that the chancellor would have directed and sanctioned such opposition if an application had been made to him in the first instance. In this case, it appears from the petition, that there were reasonable grounds for believing that the party proceeded against was not a lunatic; and the committee do not appear to oppose this application, as it was their duty to do if they believed the allegations in the petition to be incorrect." In no view of the case is the attorney entitled to costs; on the contrary, he should be compelled to pay the costs and expenses which the committee has been put to by reason of this most unjustifiable and unnecessary proceeding. It is only by inflicting severe punishment upon attorneys who use the courts of justice to strip their clients who are incapable of protecting themselves, that they and their families can be protected against forays upon their property. It may be said that the order of the court, referring it to Judge. MASON to inquire and report what sum should be allowed C. for his services, was virtually an exercise of the discretion of the court, and an allowance to the attorney of the costs of the proceedings. If the order of reference could be held to have the effect of allowing the attorney costs, it should be satisfied, in view of the facts disclosed in this case, by allowing him six cents, and no more, the amount resting entirely in our discretion in reviewing the order of confirmation. But if the order is to be held to allow the attorney costs, it was improvidently granted, being in violation of the long settled practice of the court in such cases. Courtesy should not constrain us to impose upon the estate of the lunatic so oppressive and unjust a burden, as the allowance of the sum awarded by the referee would be. In making this disposition of the case, we are not to be understood as reflecting in the slightest degree on the action of the referee. He was not at liberty to inquire into the character of the proceedings, or the motives that prompted the attorney to action. He was to inquire what the services rendered were worth, assuming them to be honest and fair, and we have no reason to find fault with the amount he has awarded to the attorney, if he is equitably entitled to anything, which he is not. FOURTH DEPARTMENT, JANUARY TERM, 1875. Exceptions to the report of the referee are allowed, and the order of confirmation reversed, with ten dollars costs, to be paid by C. to the committee or his attorney; and the motion for confirmation is denied, and the order of reference vacated. Present MULLIN, P. J., SMITH and GILBERT, JJ. Ordered accordingly. JOSIAH S. SMITH AND OTHERS, PLAINTIFFS, v. JACOB VAN NOSTRAND, DEFENDANT. Personal property-bequest of, to one for life—when remainder over is void-Gift for life-specific — residuary. Where a testator, by his will, bequeathed “unto my beloved wife, Catharine, the sum of $1,650 in lieu of dower in my real estate, for her support during her natural life, or as long as she remains my widow, then her said dower shall be transferred to my three children;" held, that the widow took the absolute title to the money, and that the bequest over was void. Rapalye v. Rapalye (27 Barb., 610) followed. A gift for life of things, quæ ipso usu consumuntur, if specific, is a gift of the property, but if residuary, then the things must be sold, and the interest of the sum arising therefrom paid to the legatee for life. MOTION for a new trial, on exceptions ordered to be heard in the first instance at the General Term. The only question presented by this appeal was as to the proper construction to be given to the following clause, contained in the will of Garret I. Smith, deceased, viz.: "First, I give and bequeath unto my beloved wife Catharine, the sum of one thousand six nundred and fifty dollars in lieu of dower in my real estate, for her support during her natural life or as long as she remains my widow, then her said dower shall be transferred to my three children, hereafter mentioned. Fifty dollars of the above named sum shall be paid her as soon as practicable after my decease, and the remainder on or about six months after." Halbert & Eckerson, for the plaintiffs. S. R. Ten Eyck, for the defendant. MULLIN, P. J.: FOURTH DEPARTMENT, JANUARY TERM, 1875. Garret I. Smith died on or about the 1st January, 1866, leaving a last will, wherein and whereby he gave to his widow $1,650, in lieu of dower in his real estate, for her support during her natural life, or as long as she remained his widow; then her dower should be transferred to his three children. Fifty dollars of the said sum were to be paid to her as soon as practicable after his decease, and the remainder in about six months. He also gave such articles of furniture in his house as she should choose, with permission to dispose of it by will to whom she chose. He also gave her the use of his dwelling-house for six months after his decease, and necessary provisions for her support and comfort, to be provided out of his estate. The widow received from the estate of her husband the $1,650 bequeathed to her, and she invested the greater part of it in bonds of the United States, which she kept during her life. She died about 15th October, 1869. The defendant obtained possession of said bonds after the death of the widow, and had part of the same in his possession when this action was brought. The plaintiffs are the sons of Garret I. Smith, the testator, to whom, by his will, the dower of said widow was to be transferred on her death. They bring this action to recover the said $1,650, as legatees thereof under the will of their father. The complaint sets forth the facts above stated. The defendant in his answer alleges that the plaintiff had no interest in the aforesaid sum of $1,650, but insists that, by the will of said Garret I. Smith, said sum was given to her absolutely. That during her life she invested the sum of $1,500 in bonds of the United States; that she used $500 of said $1,500 during her life, together with interest on the whole of said sum; that plaintiff's received $200 of said sum of $1,650; that at the death of the widow there remained of said sum $800, the greater part of which was owing for her support and maintenance. The answer further alleged, that on the 24th February, 1869, said widow made a last will, by which she bequeathed to her niece, Christina Van Nostrand, all property left by her, and appointed the defendant executor of said will. On or about the 16th of April, 1870, said will was duly proved before the surrogate of Bergen county, New Jersey, and FOURTH DEPARTMENT, JANUARY TERM, 1875. letters testamentary duly issued to the defendant. That defendant. received as executor $916.17, assets belonging to the said estate; that he applied all of said sum, except $260.82, to pay for the support of said testatrix's funeral expenses and the expenses of administrating said estate, and the said sum of $260.82 he paid over to the legatee named in her will. The defendant denies that he was the custodian of said bonds, or that the plaintiffs ever demanded the same of him. On the trial of the action at the Seneca Circuit, the plaintiffs proved the will of said Garret I. Smith. Thereupon, the defendant's counsel moved that the plaintiff's be nonsuited, on the ground that the complaint did not state a cause of action, for the following reasons: 1st. By the will the widow was vested with the absolute title and ownership of the money bequeathed to her by said will. 2d. That if the widow took but a life estate in the money bequeathed to her by said will, yet, as it was personal property, upon her death it would go back into the hands of the executors named in said will, to be by them distributed as directed by the will, and they are the only parties that can maintain an action to recover said moneys. The court granted the motion and nonsuited the plaintiffs; to which ruling and decision plaintiffs' counsel excepted. The court. ordered the exceptions to be heard in the first instance at the General Term. It is well settled that a gift for life of things, quæ ipso usu consumuntur, as corn or wine, if specific, is a gift of the property, but if residuary, the things must be sold, and the interest of the produce paid to the legatee for life.* It was held in Covenhoven v. Shuler ↑ that when there is a general bequest of a residue for life, with remainder over, although it includes things which are and which are not such as are consumed in the use, as well as other property, the whole must be sold and converted into money by the executor, and the proceeds must be invested in permanent securities, and the interest or income only is to be paid to the legatee for life. Indeed the general rule is, that where there is a bequest of the whole of the testator's personal estate, or of the residue thereof after the pay† 2 Paige, 132, * Dayton on Surrogates, 450. |