FOURTH DEPARTMENT, JANUARY TERM, 1875. ment of debts and legacies, to one person for life, with the remainder over to others after the termination of the life estate therein, the whole must be converted into money and invested in permanent securities by the executor, and the income paid over to the person entitled to the life estate. When the bequest to the legatee for life is specific, the legatee in remainder is not entitled to have the property converted, notwithstanding, by reason of its being a decreasing fund, the legacies over may altogether fail. * The legacy to the wife was a general, and not a specific legacy, and, being payable out of the estate after the debts, specific legacies and expenses of administration were paid, it was a residuary legacy; † and money, as is known of all men, is a species of property that is consumed in the use. These rules of law being established, we may now enter upon the construction of the clause of the will which gave the legacy to the widow and the plaintiffs. It is manifest by the bequest of the $1,650 to the plaintiffs, on the death of the widow, that it was not the intention of the testator to vest the title to the fund absolutely in the wife, and if she got such a title, it is in defiance of his intention. It is said by EMOTT, J., in Rapalye v. Rapalye, ‡ that when there is a specific bequest for life of chattels, or the use of chattels, which are consumed in the use, the better opinion would seem to be, that a bequest over is void, and that the person to whom they are given for life takes an absolute interest. The legacy in this case, not being a specific one, is not strictly within the principle stated by the learned judge, but it seems to me it is so nearly being specific, that the wife should be held to have taken an absolute title to it, and hence the bequest over is void. The will required the executor to pay over the money within six months to the wife; it was intended to be used for her support; the income of the legacy would have been so trifling as to be of no value to her. Nothing but the use of the fund could be of any appreciable value to her. The will would admit of the construction that the widow should take the fund and use so much of it as was necessary for her support during life, and the plaintiff be entitled to what should then remain of it. This, I think, would give effect fully to + Dayton, 418. 27 Barb., 610, 614. * Dayton, 452. FOURTH DEPARTMENT, JANUARY TERM, 1875. the intention of the testator, and to all the clauses of the will, but I do not find any case authorizing such a construction. The judgment is affirmed. Judgment affirmed. JOHN JOHNSON, RESPONDENT, v. WARREN RICHARDS, Surrogate's decree-effect of, on final settlement - Decree of distribution — right of action upon. A decree made by the surrogate on the final settlement of an executor's accounts, determines nothing beyond the amount received and paid out by him, and (unless the two amounts balance each other), the balance in his hands belonging to the estate, or due to him from it. Upon a decree directing distribution, made in conformity to the statute, an action will lie by each creditor or legatee, to recover the sum adjudged to him by such decree. A decree that a defendant pay a sum of money, without specifying the amount or providing any legal mode for ascertaining it, is a nullity. APPEAL from a judgment against defendant, entered on the decision of the court, at Special Term, in favor of the plaintiff for $1,600.50, and in favor of Jerome L. Johnson for $1,272.92. In 1851, John Jenkins, of Newport, Herkimer county, made a last will, whereby he devised to his widow and certain of his children portions of his real estate, and to others of his children specific legacies to be paid out of his personal estate. All the rest and residue of his estate he devised in trust to his executor, with directions to convert the same into money, and, after applying a part of such proceeds to certain specified uses, the residue of the proceeds were to be divided equally amongst his ten children. The testator died in 1852, leaving him surviving nine children and two sons of one of his daughters who died before him. The plaintiff and his brother, Jerome L. Johnson, were the children of such deceased daughter. At the time of the death of their mother, in 1851, these children resided in Wisconsin, and were minors, FOURTH DEPARTMENT, JANUARY TERM, 1875. the plaintiff being then about three years of age, and Jerome about one year. John Richards, the executor named in the will of John Jenkins, caused the will of his testator to be proved, and letters testamentary were issued to him, and he proceeded to convert the property of the testator into money, and paid from its proceeds debts and legacies, but did not pay anything to the plaintiff or his brother. In January, 1855, the executor presented to the surrogate who issued the letters testamentary to him, a petition praying that the necessary citations issue to creditors, legatees, etc., to appear and attend a final settlement of his account as executor. Citations were issued and served, and a settlement had, and the surrogate made a decree reciting the proceedings and stating the sums received and paid out by the executor, and showing a balance in his hands of $3,186.90, to be distributed among the heirs of the deceased according to the terms of the will. The decree then proceeds as follows, viz.: "It appearing to the surrogate that the executor had conducted fairly and had rendered a just and true account of his proceedings as executor, so far as he had received and collected the funds belonging to said estate, ordered that the accounting be in all things confirmed; and it was further ordered and decreed by the said surrogate, that the said executor's accounting be conclusive, so far as the same relates to the personal property which is mentioned and set forth in the account filed by said executor." This action is brought by the plaintiff, in behalf of himself and all other legatees and creditors of the estate of his grandfather, against the defendant, executor of John Richards, the executor of said John Jenkins' will, to recover one-half of the legacy of $300 given by the will of said Jenkins to plaintiff's mother; $100 given by the same will to himself; and one-half of his mother's share of the residue of the estate in the hands of the executor, after paying the sums directed by the testator to be paid before the balance was to be divided. The defendant, in his answer, sets up by way of defense the six and ten years statutes of limitations, and the pendency of a suit brought by Joseph Jenkins, administrator with the will annexed of Joseph Jenkins, to recover the same moneys, part of which the plaintiff in this action seeks to recover, and that after FOURTH DEPARTMENT, JANUARY TERM, 1875. the commencement of this action the complaint in such former action was dismissed with costs. The Special Term ordered judgment in favor of the plaintiff, on the ground that the action was upon the surrogate's decree, and that such action was not barred until the expiration of twenty years from the time the right of action accrued. If this position cannot be maintained, it is unnecessary to consider any other question of fact or law in the case, as it is conceded, and the court below held, that the action was barred unless it could be held to be an action to enforce the judgment. Richardson & Adams, for the appellant. Earl, Smith & Brown, for the respondent. MULLIN, P. J.: By section 71, of 3 Revised Statutes (5th ed.), page 181, the final settlement and allowance by the surrogate of the account of an executor, is conclusive evidence against creditors, legatees, next of kin of the deceased, and all other persons interested in the estate, upon whom a citation shall have been served, of the following facts, viz.: 1st. That the charges made in the account for money paid to creditors, legatees and next of kin, and for necessary expenses, are correct. 2d. That the executor has been charged all the interest for which he is legally chargeable. 3d. That he has collected all the moneys collectible on debts due to the estate. 4th. That the allowance for increase and decrease of the estate is correct. It is obvious that a decree on final settlement, determines nothing beyond the amount received and paid out by the executor, and (unless the two accounts balance each other) the balance in his hands belonging to the estate, or due to him from it. Section 78, 3 Revised Statutes (5th ed.), 182, provides that, whenever an account shall be rendered and finally settled, if it shall appear to the surrogate that any part of the estate remains to be paid or distributed, he shall make a decree for the payment and distribution of what shall so remain, to and among the creditors, legatees, widow and next of kin, according to their respective rights, and in such decree shall settle and determine all questions concerning any debt, FOURTH DEPARTMENT, JANUARY TERM, 1875. claim, legacy, bequest or distributive share, to whom the same shall be payable, and the sum to be paid to each person. This section contemplates and requires a second adjudication by the surrogate, settling the rights of legatees, etc., to a share of the fund in the hands of the executor, and the amount to which each is entitled. It is not essential that the decree last mentioned should be on a paper separate and distinct from that on final settlement. They may be in one and the same paper. Upon the decree of distribution made in conformity to the statute, an action will lie by each creditor or legatee, to recover the sum adjudged to him by the decree of the surrogate. Is the decree before us a decree for distribution, as required by section 78, above cited? It is, in terms, a decree upon final settlement only, and has in it not one essential element of a decree of distribution. No creditor or legatee is named; no amount is fixed to which any person is entitled. It merely states the amount, ascertains the balance in the executor's hands, and declares that the settlement is final. It is not essential perhaps, that the names of the legatees, etc., and the amounts to which each is entitled, should be written out in the body of the decree, provided reference is made to some other record or document where the names and amounts can be correctly ascertained. Such a reference makes the paper referred to a part of the decree. It was a matter in dispute at the Special Term, whether the legacies to the plaintiff's mother had not lapsed by reason of her death before her father, and also whether the executor of her father's estate had not paid some of the legatees more than their shares of the estate. Had the surrogate entered into the question of the rights of the legatees, these questions would have been determined, as would also the amount to which each legatee was entitled. But he made no such adjudication. He settled and allowed the executor's account, and rested. Judgments and decrees should state clearly the conclusions at which the court has arrived, so as to shield the parties, as far as possible, from the consequence of misconstruction, and thereby extending their operations beyond what the court intended, or limiting unreasonably the relief intended to be granted. A judgment or decree that the defendant pay a sum of money, without specifying the amount, or providing any HUN-VOL. III. 58 |