*416 By the Court,
Gould, J.Although the'testator, (Samuel Ludington,) in the 6th clause of his will, devises the mere naked legal title of his real estate to his two daughters and his grandchildren, yet even in that clause he stamps it with the character of personalty, in terms as explicit as those he had' previously used in regard to the same property. Those terms are too .positive and broad for this court to put them aside, and consider the bequests of the several quarters of the proceeds of the sale of his real estate as realty.
Considered as personalty from the death of the testator, Mrs. Huested’s one quarter, by sec. 1 of chap. 90 of laws, of 1860, (Laws 1860, p. 157,) must “ be and remain her sole and separate property.” not subject to her husband’s control during her life, and within her absolute power of disposal by will. Still, if she did not see fit. to dispose of it by will, (there being no intervening trustee, and no trust to be executed, and as she died leaving children, no limitation over) the' revised statutes (3d vol. 5th ed., p. 185, § 86) would attach to it upon her death, and thereby the husband would become the absolute owner of it; that section providing that the “ personal estates of married women ” are to be “ demanded, recovered and enjoyed” by their husbands, “ as they are entitled by the rules of the common law.” And this section is but a different form of enacting the former law of this state, (see 1 R. L. 314, § 17,) under which it has always been held that a married woman’s personal estate, upon her death, (“ intestate ” in the R. L., i. e. when she had the power to make, but did not make, a will,) becomes the husband’s.
It is claimed, however, that the manifest intent of the testator that this property should go to the use of his children and grandchildren, shall be held to stand in lieu of a limitation over to Mrs. Huested’s children after her death, if she died leaving children. And this intent, it is claimed, is a necessary implication, from the fact that the will provides that in case either Mrs. Huested or Mrs. Irish should die *417leaving no lawful issue, her share should go to her surviving sister and the children of the two already deceased daughters of the testator, to the exclusion of her husband.
[Albany General Term, March 3, 1863.Gould, Hogeboom and Miller, Justices.]
Such intent certainly seems clearly inferrible from, the tenor of the will; but for courts to attempt to malee complete, by inserted provisions, an instrument which the testator has left incomplete, seems a dangerous assumption of power; and it is in this case probably better to submit to the consequences of the omission, and allow the mother’s property to be diverted from the children, than to establish a precedent so liable to perversion.
As to Mrs. Huested’s children’s share of the property left in trust for Oliver Ludington and the widow, Mrs. Huested has no right thereto, since they take directly from the testator the share which their mother would have had had she survived those parties. But they do not take through their mother—she never having had any interest in those funds.
Judgment should be entered in accordance with these views.