delivered the opinion of the Court. The questions arising upon this appeal depend upon the construction of a clause in the last will and testament of the late Jonathan Grout, which is deemed doubtful, and upon the proceedings of the executor in administering the estate, which for many years past have proved such a never-failing fountain of controversy in the courts of this commonwealth, and in those of an adjoining State, where a considerable portion of the. estate of the testator was situate.
Upon the facts in the case the counsel for the appellant have endeavoured to maintain two positions : — 1. That the residuary clause, at least to the extent of $ 1000, is to be construed as a pecuniary legacy, and so vested in the appellant. 2. If it is not so construed, but is considered as a residuary devise of real estate, then that the land devised was converted into money, with the consent of Lydia Houghton, and that it thereupon vested in her husband, the appellant.
Neither of these positions can, we think, be maintained.
The testator’s property consisted principally of real estate, the personal estate being insufficient to pay his debts. The residuary clause, therefore, is in express language a disposition and devise of real estate, and there is nothing to indicate an intention of giving a pecuniary legacy.
It has been said, that if the lands had not been sold, it would be difficult, if not impossible, to execute the will, construing the residuary clause as a devise of lands ; but we can perceive no impossibility, nor indeed the slightest difficulty in making a distribution of the property according to the terms of the will. The lands might be appraised, and if the appraised value should not exceed the sum of $ 5000, or $ 1000 to each daughter, then the whole would vest. ;n them in equal shares. If the value should exceed that amount, *158then so much of the land as would be of that value might be set °ff to them, leaving the residue to be divided among all the children.
As to the second question, whether Lydia Houghton assented to the sales made by the executor. The evidence appeal’s to us not satisfactory. Courts should be slow to sanction the assent of a wife to the conversion of real estate into money, without convincing proof that she assented understandingly, and with a full knowledge of the legal effect of such a conversion upon her rights and interests, and without any undue influence on the part of her husband. The loose conversations of the wife, such as are proved by the depositions of Polly G. Brooks and George A. Houghton, unsupported as they are by any circumstance to show that she understood the legal effect of such a change, and did not act under the influence of her husband, ought not, we think, to be binding upon her or her heirs. Upon her death, therefore, her share of the real estate descended to her heirs, the sales of the executor being void. But the heirs have since elected to confirm the sales, as they had a right to do, and are, therefore, entitled to an equivalent in their distributive shares of the fund produced by the sales.
They are, however, not entitled to the whole share belonging to Lydia Houghton. The husband, during the life of his wife, was entitled to the profits and income of her real estate ; and he continues entitled to receive the same as tenant by the curtesy. The interest of the money for which the lands sold, consequently, belongs to him, he relinquishing his claim to tire lands. We are aware that this may probably exceed the profits or income of the estates sold, and so probably the amount of sales exceed the present value of the estates sold. But to these advantages, if any there be, the parties are respectively entitled. The appellant’s distributive share will, upon these principles, be the amount of the past interest, and the present value of his life-right in the future interest or income of his deceased wife’s share of the fund arising from the sales.
The expectation of life is to be determined by Dr. Wigglesworth’s Table of Mortality, and the value of the life-righi *159may be ascertained by computation, or by Dr. Bowditch’s life-annuity tables.
The decree of the judge of probate is to be reversed, and a new decree entered up in conformity to these principles, and the papers are to be remitted to the probate court for further proceedings.