The opinion of the Court was drawn up by
Davis, J.By the terms of the will it is evident that the testator intended that, after paying his debts, his estate should be divided among his children, except fifteen hundred dollars to be reserved for his widow. To her he bequeathed "the income of fifteen hundred dollars, to be paid to her annually;” that sum "to be put to interest by the executor, and to be equally divided among the children after her decease.” He must have intended, therefore, that there should be that sum left at the decease of the widow. It follows, that the "income” to be given to the wife would be the net income, after deducting taxes and other expenses. Clark v. Foster, 8 Met., 568.
■ The executor has paid the widow the entire interest of the fifteen hundred dollars, charging the taxes and expenses to the estate. She has, therefore, received annually more than was her due. And this, in< part, has reduced the sum invested much below the original amount.
But, in settling his first account, in 1829, the executor, by mistake, charged himself with five hundred dollars too 'much. He also allowed the estate about three hundred dollars for demands which proved unavailable, and which were afterwards credited to him in his second account. In consequence of this over estimate of the property, when he divided the first portion of it among the heirs, he paid them over one hundred dollars, each, more than was their due. This, with interest upon it from 1829, (which would be the only way to revise the whole matter,) would nearly make up the deficiency in his hands.
*563But none of these matters are now before us. They are res judicatce in the Probate Court, the orders and decrees of which are conclusive. Nothing is presented by the report but the propriety of allowing the third account, from which the appeal was taken.
Nor is there any item in this account in regard to which there can'be any doubt, except that of $37,80 paid to the widow. The errors in the first and second accounts were properly corrected. The appellants did not move the Probate Court to have any other errors corrected. There was therefore no refusal from which they could appeal. And no appeal was taken from the allowance of either the first or second account. The matter was within the jurisdiction of the Probate Court, and the judgment of that Court is final and conclusive.
As the widow had already received more than was her due at the time, the payment to her since the settlement of the second account, was wrongfully made. The decree of 'the Probate Court allowing the executor the sum of $37,80, paid to her, is reversed; and the remainder of the decree allowing the account is affirmed. The widow will be entitled to receive the net income of fifteen hundred dollars during her life; the over payments may be regarded as advances ; and it will be the duty of the executor to resume the annual payments as soon as anything more shall be due.
Tenney, C. J., Rice, May and Goodenow, JJ., concurred.