There is no difficulty in the construction of the will. The widow was entitled to the use of the real estate during her life, if she remained unmarried. If she married, her interest then terminated. Of the personal estate, a legacy of four hundred dollars was first to be paid out of it to the testator’s eldest son, Stephen Van Duyne, *266and the use of the residue was given to the widow on the same terms that she was to enjoy the real estate. At her death, or if she married, then, at her marriage, all the real estate and the residue of the personal estate were to be divided equally among all the testator’s children, being seven in number.
The defendants John Hey and Hannah, his wife, must account. The only questions involved in the case which are in controversy between the parties are, as to some principles applicable in taking the accounts. The complainants, not having put the facts alleged in the answer at issue, they must be taken as true.
The bill alleges, and the answer admits that Stephen Van Duyne, the executor named in the will, has not intermeddled with the real estate, and that no part of the personalty came to his hands or within his control, except the sum of four hundred dollars, and which he was entitled to as his legacy.
The defendant Hannah, the executrix of the will, intermarried with John Dey on the 20th of February, 1850. They admit that, since then, they have been in the actual possession of the larger portion of the real estate, and have received the rents from the persons occupying the residue. They must account for the rents and profits of all the real estate of which the testator died seized, since the 20th of February, 1850.
In taking this account, they claim an allowance for improvements put upon the estate by the defendant Hannah, during the period between the death of the testator and her marriage, and for money paid for the tillage, care, and culture of the land.
They are not entitled to such allowance. As to the improvements, they might have been proper and necessary for the full enjoyment of the estate, and doubtless have contributed to its permanent value. But the devisee terminated her estate by her own will. By the terms of the devise, she was entitled to the real estate during her life, if she remained unmarried. She accepted the estate, in lieu of her dower, upon the conditions annexed to it. There is *267nothing in the case which, as a matter of equity, entitles the defendants to an allowance for the improvements.
As to the moneys expended for the care and culture of the land, such expenditures were made for the devisee’s own benefit. She occupied the land, and for the moneys expended in its care and cultivation enjoyed its products. She was entitled to the use of it, but not to cultivate it at the expense of the children.
In accounting for the personal estate, the defendants are entitled to have the mistake as to the Hopper note, which is alleged to have been made in taking the inventory and appraisement, corrected, without further proof. The circumstances of the mistake are set out in the answer, and the defendants offer to prove the error. The complainants have not afforded them an opportunity of doing so, by putting the facts affirmed by them in issue by a replication. Taking the circumstances stated as true, the mistake is apparent.
The payment made to Kitty De Hart, and the amount paid as a compromise to Anthony Young, under the facts stated in the answer, are proper for allowance, as likewise the sum of money paid to John Van Wagoner.
The defendants claim an allowance for one cow set off to Silas Van Duyne; one cow to Elijah ; one horse to Albert; and a cow, bed and bedding set off to Catherine Ann. The only objection to these allowances is in the fact that these children were under ago at the time they respectively received the property. The property was left by the testator, and is contained in the inventory and appraisement. The defendants being entitled to the full benefit of their answer, it is to be conceded that the advances were made to the children in good faith, and that they have had the full benefit of the property. Under these circumstances, it appears to me equitable that, in taking the accounts, these children should be respectively charged with these articles.
The defendants claim a further allowance of five hundred and sixty dollars, paid by the executrix to John Dey previous to their marriage.
*268The answer in reference to this claim states that, after the testator’s death, it was necessary that some one should be employed to take charge of the real estate, and cultivate the land ; that she employed Dey for this purpose, at a price of ten dollars a month, and that his wages amounted to the sum of five hundred and sixty dollars, which she paid him, by selling him a horse belonging to- the estate, valued at seventy dollars, and the residue in obligations which came into her hands as executrix. I have already stated that the executrix had no right to appropriate the property for any such purpose. Dey insists that the obligations having been transferred to him bona fide, and for a valuable and ample consideration, and as he did not know, at the time of their transfer, that they belonged to the estate of the testator, he has a right to retain them as his own. If he was otherwise a stranger to this suit, the fact of his having received the obligations without the knowledge of their belonging to the estate of the testator, might perhaps protect him. But he is made a defendant in this suit, not because the obligations were transferred to him, but because he is the husband of the executrix, and as such must be held accountable with her, as long as the coverture lasts, for all the property which came to her possession as executrix, no matter whether it came to his hands or not. “ If a feme sole, being an executrix or administratrix, wastes the goods of her testator or intestate, and then marries, her husband is liable, as long as the coverture lasts, for the devastavit.” 2 Williams on Executors 1128, and note L; Knox v. Picket, 4 Dessaus. R. 92 ; Moon v. Henderson, 4 Dessaus. R. 459. The defendants must be charged with the five hundred dollars.
The defendants further claim an allowance for the executrix for the care, support and maintenance of the children during their minority, and from the testator’s death to the time of the marriage.
The executrix, as the mother óf these children, was under a moral obligation to maintain and educate them, and to devote her property and industry for the purpose. It is true, where children have a separate estate from their mother, a *269Court of Chancery has the power, and will, in a proper case, make an order for an allowance out of their own estate for their support and education ; or will, in the settlement of the accounts, allow for such past expenditures, although made without an order of the court. In the case of Wilkes and wife v. John Rogers and others, 6 Johns. R. 566, which was then decided on an appeal from the Chancellor, the Chancellor had decided that the charge for the maintenance and education of the children, made in that case by the executrix, who was their mother, could not be allowed, because .(he charge was not deduced from a previous order, and the Chancellor, in his opinion, cites the numerous authorities applicable to the subject. But the Court of Errors reversed the Chancellor’s decision, and decided that the mother was entitled to be allowed, out of the portion of the estate belonging to the children, for their maintenance during infancy. But in that case, the judges, in their opinions, admit that such allowance is not in accordance with the general rule. But the circumstances of that case made it an exception to the rule.
But what propriety or equity would there be in such allowance in the case before us ? The father of these children, placing implicit confidence in his wife, and believing that the interest and care of his children could be safely committed to her, secured by a mother’s affections, had not left them, by his will, anything to supply their then present wants. The use of all his property, except a legacy of four hundred dollars, he' gave to his widow. This, with some property she possessed of her own, proved amply sufficient for her own comfortable support and the maintenance of her children. She shows, in her answer, that from this property she had been able, over and above supplying these necessities, to accumulate several hundred dollars. The intention of the testator was, that with the use of the property devised to his widow, she should take care of his children. It was never his intention that she should have the use of it for her own benefit, and a resort be had to the principal for the maintenance of the children.
*270As to the bond and mortgage of G. W. Van Duyne and that of Young, the bill of sale given by Everett, and the note of "Vannest — taking the account given of them in their answer as true — they constitute no part of the estate.
Only one other question remains to be settled. The defendants state in their answer that all the goods and chattels, and all the personal property mentioned in the inventory and appraisement, other than the debts therein mentioned as due and owing to the estate, still remain, in specie, upon the premises, except a portion thereof, which, from its nature, was consumed in the use; some live stock, which died from disease, and the horse, cow, &c., transferred and delivered to the children, as before referred to. The defendants insist that they are entitled to an allowance for the property that was consumed in the use, and that perished, and that the residue must be sold, and an allowance be made the executrix for any deficiency there may be between the amount the property was appraised at and the sum it may bring at such sale.
The complainants, on the other hand, insist that it was the duty of the executrix to have sold all this property when she assumed her duties as executrix, and to have invested the money so that she might have received the benefit of its income, and her children the principal, when, by the terms of the will, they should be entitled to it.
In the case of Covenhoven v. Souler, 2 Paige Ch. R. 132, Chancellor Walworth says: “ Whether a gift for life of specific articles, as of grain, hay, &c., which must necessarily be consumed in the using, is to be considered an absolute gift of the property, or whether they must be sold and the interest or income only of the money applied to the use of the tenant for life, appears to be a question still unsettled in England.” 3 Ves. 314; 3 Mer. 194. But none of these principles in relation to specific bequests of particular articles, whether capable of a separate use for life or otherwise, are applicable to this case. When there is a general bequest of a residue for life, with a remainder over, although it includes articles of both descriptions as well as other *271property, the whole must be sold and converted into money by the executor, and the proceeds must be invested in permanent securities, and the interest or income only is to be paid to the legatee for life. This distinction is recognized by the master of the rolls in Randall v. Russell, 3 Mer. R. 193.
These rules are all very well where there is any doubt as to the intention of the testator. If we can ascertain that intention with any reasonable certainty, it must prevail over any technical rule. This bequest of the personal property included articles which, from their nature, would be consumed in their use, and of which the use and the property could have no separate existence. The testator left his widow with a large family of young children. He left her the use of all his personal property, except four hundred dollars, and the use of all his real estate. This personal property in question was appropriate and necessary for the enjoyment of the real estate. It was used legitimately for that purpose, and these children enjoyed, with their mother, the benefit of it. Of some of it the use consisted in its consumption, and the residue was only depreciated in value by its use. The testator made the legatee his executrix and placed the specific property in her hands. She ought to be called to a strict account for all this property, and I do not intend to lay down any rule by which she can escape. But I do not believe it was the intention of the testator that this property should be sold at his death. The executrix, when she made up her mind to marry, ought to have stated and exhibited her accounts, and put the estate in a condition for settlement, according to law. Her dealings with the man she intended to marry; the transferring to him of upwards of five hundred dollars of the property committed to her trust; her husband and herself remaining in the use of all the real and personal estate after her term and interest in it had expired ; these circumstances do not incline me to extend any leniency to these defendants in taking the accounts.
As to the property which was necessarily consumed in its actual use upon the premises, and the live stock which *272perished from disease, an allowance must be made at their appraised value.
As to the residue, the defendant Dey and his wife have converted it to their own use. There is no necessity of selling it. Having assumed the ownership of it, the defendants must account for it at its appraised value. The executrix might, under other circumstances, have been entitled to an allowance for its depreciation. The conduct of the defendants, in assuming the ownership of it after their marriage, must deprive them of this benefit.
Let it be referred to a master to take and state the accounts upon the principles laid down. In addition to the allowances before mentioned, let an allowance be made for moneys expended by the executi’ix, in the discharge of her duties, not to exceed fifty dollars, and a sum for commissions, not to exceed one hundred and fifty dollars. These sums are the extent of what she claims in the answer.