exemptions upon the grounds of public policy, justice and humanity; and the remedial statutes relating to the same must receive a liberal construction.

The legal obligations of the husband compel him to support his wife and minor children. That he did not do it in this case is no argument in his favor, and considering the relation of the parties as husband and wife, every reasonable presumption must be made in her favor. The conclusion would not seem unreasonable that he did fail to keep his marital vows to her. Pierce v. Pierce, 71 N. Y.. 154; Vedder v. Saxton, 46 Barb., 188; Fox v. Burns, 12 id., 677; Voelckner v. Hudson, 1 Sandf., 215; Sheldon v. Bliss, 4 Seld., 31: Lewis v. Smith, 5 id., 502; Harper v. Leal, 10 How., 276, 282, 283; Guidet v. Brown, 54 id., 409; Curry v. Curry, 10 Hun, 366; Kneettle v. Newcomb, 22 N. Y., 249; Dayton's Surrogate, 275, 3d ed., quoting decision of surrogate of New York, in point, not reported; Woodward v. Murray, 18 Johns., 400; Scofield v. Scofield, 6 Hill, 642; Kapp v. Public Administrator, 2 Bradf., 258.

In the case last cited the court says: "There is some meaning in the circumstance that the words for use of his family' were substituted by the legislature for the words 'in any dwelling house' as originally reported by the revisors." Matter of Steward, 30 N. Y. State Rep., 438-442, and cases therein cited on question of construction of remedial statutes.

The burden of proof to show that the wife was at fault in the separation rests with the husband. Sears v. Shafer, 6 N. Y., 268; 1 Barb., 408, 417.

To hold that a husband may, by brutal or inhuman conduct compel his wife or minor child to remove from his household and thus sever his family relations with them, and by such acts deprive them of their just share in his property at his death, would seem to be most unjust and absurd.

I direct decree that the executor, Ezra II. Shedd, make and return an inventory of the property of the deceased, as required by law, within fifteen days after service of a copy of such decree on him, and that in default an attachment be issued against him.

In the Matter of the Estate of ORONSO S. GILBERT, Deceased. (Surrogate's Court, Chautauqua County, Filed September 22, 1890.) WILL-CONSTRUCTION OF.

The testator died seized of 330 acres of land consisting of several improved farms, of the value of $8,000 and owning personal property worth $5,500, and owing debts not exceeding $2,000, and leaving a widow, and four sons and one daughter by a former deceased wife, and one son of full age and one infant daughter by his surviving widow, and appointed his two eldest sons by his first wife executors of his will. By the first paragraph of his will after providing for payment of his debts he, in terms, gave the use and control of all his property to his widow, for her own personal benefit during her life. By the second paragraph he gave all that might remain at her death to his seven children share and share alike, and authorized his executors to sell the real estate as might be deemed by them for the best interest of his said estate, but only with the consent of the widow. The concluding sentence of his will was as follows: "Nothing herein contained shall require the appointment of any appraisers of

my said estate at the event of my decease, but my whole property, its management and use shall immediately vest in my said wife and be subject to her absolute control during her lifetime, and she shall not be subject to any accounting therefor." Held, that the testator intended to and did by his will bequeath and devise the use of all his property real and personal to his wife for her own personal benefit during her life and at her death to his seven children, share and share alike, and gave his executors authority to sell the real estate with the consent of the widow as they might deem for the best interest of his said estate, intending thereby the best interest of his seven children, and to give her only the use of such property, real and personal, during her life, for her own individual benefit, absolutely for her support and maintenance and not otherwise, and that the provision declaring the executrix not subject to an accounting was nugatory and void.

PROCEEDING for an accounting by executrix.

Norman M. Allen, for widow and two other legatees by her; T. A. Case and J. E. Hazard, for executors, and five children of the testator by his former deceased wife.

SHERMAN, S.-The testator died April 21, 1888, leaving Helena L. Gilbert, his widow, Edwin S. Gilbert, Milo O. Gilbert, James A. Gilbert and Joseph C. Gilbert, sons; and Josephine Bentley, daughter, by his former deceased wife; and George G. Gilbert, son of full age, and Lena W. Gilbert, daughter, aged fifteen years, children by his said widow, Helena, him surviving.

He died seized of unincumbered real estate, consisting of sev eral improved farms containing 330 acres, in Chautauqua county, of the value of $8,000, and owning personal property of the value of $5,500, and owing debts not exceeding $2,000. He made his will dated March 31, 1888, probated May 28th same year, and appointed his two eldest sons by his first wife, said Edwin and Milo, executors thereof, of which will the following is a copy, not including the formal parts:

"First. After all my lawful debts are paid and discharged, I give, devise and bequeath to my wife, Helena L. Gilbert, all my property, both real and personal, to have, hold, possess, use and control for her own personal benefit during the term of her natural life.

"Second. At the event of the decease of my said wife, Helena, I give, devise and bequeath all that may then remain of my said estate to my following named children, share and share alike, to wit: Edwin S. Gilbert, Milo O. Gilbert, James A. Gilbert, Josephine Bentley, Joseph C. Gilbert, George C. Gilbert and Lena W. Gilbert. "Third. I hereby give and grant to my executors, hereinafter named, full power and authority to sell and convey any portion of the real estate of which I may die seized; provided, however, that such sale shall first be approved and concurred in by my said wife Helena, and shall be deemed by my said executors for the best interest of my said estate.

"Fourth. Nothing herein contained shall require the appointment of any appraisers of my said estate at the event of my deceuse. But my whole property, its management and use, shall immediately vest in my said wife, and be subject to her absolute control during her life-time, and she shall not be subject to any accounting therefor."

It is claimed by the learned counsel for said Helena L. Gilbert,

widow, George G. Gilbert, son, and by the special guardian and counsel for said Lena, minor, being children of the testator by his said second wife, that such will gives to the widow the absolute title to all the said real and personal estate, after payment of debts, funeral expenses and expenses of administration, and that the use and possession of same was not limited to her life, and cites the following authorities: Campbell v. Beaumont, 91 N. Y., 465; Van Horne v. Campbell, 100 id., 287; Clarke v. Leupp, 88 id., 228; Roseboom v. Roseboom, 81 id., 356; Griswold v. Warner, 20 N. Y. State Rep., 432; Leggett v. Firth, 53 Hun, 155; 25 N. Y. State Rep., 332.

It is claimed by the counsel for the executors and other children by the first wife of the testator, that the testator intended to and did by his will give to his widow only the use of his property, real and personal, after paying debts, funeral expenses and expenses of administration, during her natural life, for her necessary support and maintenance, and at her death the remainder of his estate to his seven children, legatees named in his will, share and share alike, and cite the following authorities: Matter of French, 13 N. Y. State Rep., 759; Matter of Verplanck, 91 N. Y., 439; Matter of Westcott, 16 N. Y. State Rep., 286; Wager v. Wager, 96 N. Y., 164; Taggart v. Murray, 53 id., 233; Van Vechten v. Keator, 63 id., 52; McKeown v. Officer, 6 N. Y. Supp., 201; 25 N. Y. State Rep., 319; Matter of Fuller, 5 N. Y. Supp., 46; 22 N.Y.State Rep., 352; Black v. Williams, 4 N. Y.Supp., 243; 21 N. Y. State Rep., 263;Terry v. Wiggins, 47 N. Y., 512; Greyson v. Clark, 4 N. Y. State Rep., 4; Rose v. Hatch, 29 id., 539.

While these authorities illustrate the general well established principles governing the construction of wills, not one of them fully covers the exceptionable state of facts and circumstances to be considered in arriving at the real intention of the testator by this remarkable instrument. He made his will only a few days prior to his death. He left five children by his first wife and two by his last. His family relations had always been pleasant, there being apparently no petty jealousy existing between his two sets of children, all of whom were well brought up and respectable. He had apparently no partiality for any of them. By their aid he had accumulated a handsome property.

By the first paragraph of his will he gave the use of all his property to his wife during her life, an ample provision for her, and emphasized his intention by saying that such use was "for her own personal benefit during the term of her natural life."

By the second paragraph of his will he gave all that might remain of his estate at her death to his seven children, naming each, share and share alike.

By the third clause of his will he gave to his two eldest sons, executors, full authority to sell and convey his real estate with the concurrence of his widow, convert the same into money as might be deemed by them to be for the best interest of his said estate.

The extraordinary provisions of his will are in the fourth clause, which provides that no appraisement shall be required of his property at his death; but that his whole property, its management

and use, shall immediately vest in his said wife and be subject to her absolute control during her life time, and that she should not be subject to any accounting therefor.

I have ordered an appraisal of the personal property which has been made and filed, and hold that the clause declaring that she shall not be subject to any accounting for the property of her deceased husband is nugatory and void as against the policy of the law and contrary to the whole context of the will.

The case of Smith v. Bell, 6 Peters, 68, in which the very learned chief justice, Marshall, of the United States supreme court writes the opinion, appears to cover the whole line of legal controversy and argument in this case, and such authority is approved by our own court of appeals in the very recent case of Crozier v. Bray, reported in 120 N. Y., 366; 31 N. Y. State Rep., 506.

The case quoted and decided by the United States supreme court came up from the seventh circuit and district court of East Tennessee; the property involved being goods and chattels consisting of a negro woman and her four children, all slaves.

The will gave to the testator's wife all his personal estate "to and for her own use benefit and disposal absolutely; the remainder of the said estate after her decease to be for the use of the said Jesse Goodwin," son of the testator. The court held that the wife took an estate only during her life and the son took a vested remainder. Yet in that case the words "during the term of her natural life" and "during her life time," appearing in the first and fourth clauses of this will, were not in that, but the court held that the remainder of said estate after the decease of his wife, to be for the use of said Jesse Goodwin, were equivalent thereto.

I direct decree holding that the widow in this case takes only a life interest and use of the personal property of her deceased husband to hold same in trust for her necessary support and maintenance during life; and it appearing that this is only an intermediate accounting, and that the time for the presentation of claims against the estate has not expired, and that there are debts due the estate not paid, and all parties interested having appeared personally, or by attorney, and consenting, the further proceedings herein are adjourned to November 26, 1890, and all questions relating to commissions and costs of the respective parties are reserved until that date.

TIMOTHY DASEY, Pl'ff, v. WILLIAM I. SKINNER et al., Def'ts. (Supreme Court, General Term, Fourth Department, Filed September 20, 1890.) 1. VILLAGES-WATER RENTS-LAWS 1875, CHAP. 181.

The term " water rents," as used in § 13 of chap. 181, Laws 1875, is to be construed as synonymous with "water rates," and such rents may be levied upon property, although no water is actually taken and used thereon. Protection to the owners of property against loss by fire afforded by the system is a sufficient benefit to authorize the commissioners to levy the tax thereon.

2. SAME-CONSTITUTIONAL LAW.

The property owner, however, is entitled to notice and an opportunity to be heard upon the question of a levy of such water rents, and a levy made without such notice is in violation of the constitution and void.

CASE submitted on statement of facts agreed upon pursuant to S$ 1279 and 1280 of the Code of Civil Procedure.

McEvoy & Jones, for pl'ff; J. D. Beckwith and A. M. Mills, for def'ts.

KENNEDY, J.—The defendants, as water commissioners for the village of Little Falls, caused to be constructed a system of water works for said village, under and in pursuance of the provisions of chapter 181 of the Laws of 1875, and completed the same prior to June 26, 1888. On that day the said commissioners established a scale of rents or water rates to be charged and paid to them from time to time for the supply of water appropriated to different classes of buildings in said village, as provided by § 13 of said act. By these, rates were charged on all classes of property in said village, including vacant lots, and all buildings situate on the line of all streets and alleys, and all business places through which water mains were laid and from which a supply of water could be taken, whether the same was taken or not for use upon such lots, or in such buildings.

These rates from July 1, 1888, to May 1, 1889, were as follows: Each dwelling house occupied by one family, with the privilege of one faucet and for domestic purposes only, $5; each additional family, with the same privileges, $3.

The plaintiff was the owner in fce of lands situate on Furnace street, having a frontage thereon of fifty-three feet, upon which was standing a two-story double house, actually occupied by four families. Furnace street is a public street in said village, through which the water mains were laid. There was no water taken or used in said house or on said premises from said main.

On the 19th day of June, 1889, the defendants, as such commissioners, made an assessment-roll of their assessment of water rates against the several persons named therein as owners of the several parcels of real estate therein mentioned for the period between July 1, 1888, and May 1, 1889. All the lots and dwellings facing on streets through which the mains were laid were assessed according to said rates. The plaintiff was assessed for his premises aforesaid on Furnace street, $13.34. This not having been paid within the time provided by law, a warrant for its collection was duly issued and delivered to the collector of the village, and he levied upon and converted to the payment of said tax and his fees property of the plaintiff of the value of $14.04. This sum the plaintiff claims to recover upon the ground that the proceedings of the defendants, as such commissioners, were illegal, and they therefore became trespassers.

The first contention on the part of the plaintiff is that the defendants had no authority to levy a tax for water rates except where water was actually taken and used upon the premises; and he seeks to support the claim upon the peculiar phraseology of § 13, before referred to. This section provides that the said commissioners shall establish a scale of rents, to be charged and paid from time to time for the supply of water, to be called "water rents," and appropriated to different classes of buildings in refer