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Misc.] Surrogate's Court, Cattaraugus County, May, 1908.

real estate and as to personal property. Rapallo, J., in the opinion says: "A will may be proved at one and the same time, both as to real and personal property. The effect of the probate differs, however, as to each class of property. As to the real estate, the probate is not conclusive either as to the validity or due execution of the will; but in respect to dispositions of personal property contained in a will the rule is different. Its admission to probate as a will of personal property is conclusive as to its validity until such probate be reversed on appeal or revoked by the surrogate, in the manner provided by the statute, or the will be declared void by a competent tribunal."

The conclusion reached in the Austin case above cited does not disregard this distinction. It is to the effect that the surrogate may construe a will, so far as it relates to personal estate, although not as to real estate, even where the disposing provisions of the two classes of property are one and inseparable. No reason is apparent why this should not be done; the construction of the terms of the will relating to the personal estate in no manner affects the disposition of the real estate or the rights or remedies of any person entitled to the same. The representative of the estate, as a matter of expediency, should know at the earliest possible period in the administration his rights and obligations in regard to the personal estate. The statute, therefore, gives the representative, or any other party interested in the estate, the right to ask, in connection with probate, for a construction of any ambiguous or uncertain provision relating to personal estate. To this extent the surrogate has jurisdiction; further than this no jurisdiction exists, because of the radical difference in the effect of probate upon real and personal estate, as above pointed out. The determinations reached in the Austin case are much more logical, more in harmony with the apparent purpose and intent of the statute (section 2624, Code) and more conducive to expeditious administration of the personal estate than is the rule laid down in the Shrader case above referred to. It will accordingly be held in this case that the surrogate has jurisdiction to construe the provisions of

Surrogate's Court, Cattaraugus County, May, 1908. [Vol. 59.

the will quoted, so far as they relate to the personal estate, and no further.

In testamentary construction the intention of the testator should be ascertained and effectuated as far as possible It is entirely apparent from the phraseology employed that the testator in this case did not intend to make an absolute and unqualified gift of all his estate to the wife; the first paragraph of the portion of the will quoted clearly gives the wife a life estate in both the real and personal estate. In addition to such life estate, she is also given the power to use such portion of the corpus of the estate as might be required for the purposes therein specified. The words, "in all respects the same as though said estate and property were her own individual estate," were not designed to change the life estate, created by the first paragraph, to an absolute and unqualified estate; they were evidently used by the testator to give to the wife a wide discretion in the exercise of the power over the corpus of the estate.

In Matter of Hunt, 84 App. Div. 159, the provision of the will under consideration was as follows: "I give and bequeath to my wife, Ruth Hunt, the income of all my estate, both real and personal, wheresoever it may be situated or located and as much of the principal as she thinks proper for her support and for the care which she shall give to our son Chauncey, with the privilege to dispose of the real estate if my wife thinks, best to do so."

Upon the decease of the wife, the residue of the estate was given to trustees for the support of the son; and, upon the death of the widow and of the son, the remainder was given absolutely to the persons who were named such trustees. It was held that this provision of the will did not confer upon the widow of the testator absolute title, if she chose to accept it, to all the testator's estate; but that the income and so much of the principal as she thought proper were both given to her for the specific purposes mentioned in the will, to wit, for the support of herself and son. This decision was affirmed upon appeal to the Court of Appeals (179 N. Y. 570) and is so nearly parallel to the one under consideration that other citations are unnecessary. The decree to be

Misc.] Surrogate's Court, Chautauqua County, May, 1908.

entered in this proceeding will contain a provision construing the portion of the will quoted as giving to the widow the use during life of all testator's estate, both real and personal, and in addition thereto the right and power of using so much of the corpus of the estate as she deems proper for her own support and the maintenance of the children; and that the residue of the estate, whatever it might be, should pass, under the provisions of the residuary clause, viz., unto such of my children as shall be living at the death of my wife, to be divided between such children equally."

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Decreed accordingly.

In the Matter of the Judicial Settlement of the Accounts of EMMA J. BUSHBEY, GARDNER J. WALKER and UNION TRUST COMPANY, as Executors of the Will of MARY F. PHELPS, Deceased.

(Surrogate's Court, Chautauqua County, May, 1908.)

Domicile-Wife's domicile as determined by that of the husband. Descent and distribution - In general - Conflict of domestic and for

eign laws.

A married woman who had lived for many years with her husband, who had a weakness for drink, in Pennsylvania cannot acquire a separate legal residence in this State without at least having grounds for legal separation or divorce.

Where the wife, in such case, having no grounds for a separation or a divorce, leaves her husband and removes to this State, where she died about a month after, the distribution of her estate must be made on the basis that she was a resident of Pennsylvania at the time of her death.

PROCEEDING upon the probate of a will.

Harry R. Lewis (Frank W. Stevens, of counsel), for

executors.

Chauncey Rogers (William Martin, of counsel), for Dyer Phelps, contestant.

Surrogate's Court, Chautauqua County, May, 1908. [Vol. 59.

CROSBY, S. By stipulations made in open court the several parties interested in this matter have eliminated all questions from the case except these two, viz.: First, whether as a matter of fact Mary F. Phelps intended to change her residence from Columbus, Penn., to Jamestown, N. Y., on or about April 1, 1905; and, Second, whether as a matter of law such intent, coupled with her actual removal to Jamestown and her continued stay there till her death on May 13, 1905, could operate to give her a residence separate from her husband who, it is conceded, lived all the time in Pennsylvania.

Let us take up the proposition of law first. The learned surrogate of Monroe county has recently declared in effect that the very last vestige of woman's slavery is at last swept away; that a woman, without a divorce or separation from her husband, and without grounds for a separation or divorce, indeed without any excuse or reason except that she wills it, may acquire a legal as well as an actual residence separate and apart from her husband. Matter of Walker, 54 Misc. Rep. 177.

I am not prepared to go that length. It is a matter for pride that our State has gone so far toward emancipating woman from her former condition. It is no longer safe for her husband to beat her with a rod of the size of his thumb. or smaller; she is now considered a human being separate and distinct from her husband; she is a legal entity in and of herself; she has all the property rights that her husband could have; she may even sue her husband in an action on contract, and be sued by him. All these reforms have been brought about by the several Married Woman's Acts, not one of which has gone too far in recognizing the rights of woman in her person and property. But there is still an excellent reason why a woman should not be allowed to choose her own residence in another State or county from that of her husband without at least having grounds for legal separation or divorce from him. Or, if she is to be given that right, then the husband's right in that regard should be made subservient to her wish in order that the home, the foundation of society, may have a local habitation, without which it is

Misc.] Surrogate's Court, Chautauqua County, May, 1908.

but a name, and meaningless at that. Either the husband. or the wife must have the final say in the matter of where their home is to be; and, so long as the husband is burdened with the responsibility of feeding and clothing the family, the wife and children, that very responsibility ought to carry with it the authority to determine the location where his toil will earn its best reward for their benefit. No statute ought to repeal the laws of nature. Man, by reason of his superior physical strength and the fact that he does not bear the children, must ever be one to bear arms in war, and upon him must always fall the responsibility of providing for the family. The burden of his responsibility is the secret of his authority. And the Legislature has not intended to go so far as to say that he shall be responsible for the care and maintenance of one who owes him no allegiance whatever.

If, in addition to all her conceded rights, woman may now select her own home and domicile, it is hard to see where she has a single duty to perform for the one who becomes a disorderly person, under the Penal Code, the moment he neglects or refuses to earn her living for her by the sweat of his brow. If we have emancipated woman to the extent claimed by the executors herein, the process of emancipating man ought now to begin.

A careful examination of the various Married Woman's Acts will disclose that the sanctity and unity of the home have never been invaded.

There is no evidence in this case that Mrs. Phelps had any grounds for a separation or a divorce. She and Mr. Phelps had lived together as man and wife for many years. They were old people. They had had their differences and it is conceded that, up to within forty-three days of Mrs. Phelps' death, they had managed to live together as man and wife in spite of them. It is hard to believe that Mrs. Phelps in her old age and in her last sickness even intended to leave her husband because of weaknesses she had endured so long. The evidence shows his weakness for drink, and his insistence that gin would cure all her ills as it had cured his. But there is no evidence of any serious breach between Mr. and Mrs. Phelps, or of any cause for a breaking up of the

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