and 85 New York State Reporter. whole of a vessel worth $3,200, he would under the first sentence of section 18 be obliged to pay the whole of a claim of $32,000, which would obviously compel him to institute proceedings under the second sentence of the statute; and, if an individual owning an entire ship can pursue this course, there is no reason, and nothing in the statute considered in its entirety, preventing an owner of but a small fraction of a ship limiting his liability to the whole world to the value of his fractional ownership. Doubtless the portion now under consideration of the act of 1884 might be more clearly expressed; but, while believing its correct interpretation to be as above indicated, it is, for the purposes of this case, sufficient to quote the language of Webb, J., in The Giles Loring, 48 Fed., at page 474: * "This statute was evidently designed to modify in some way the liability previously imposed by law, and to relieve shipowners of some portion of that liability. ** Relief in this way is not in terms made to depend upon the condition that the owners are in position to take advantage of the other portion of the statute, and be discharged of all liability beyond the value of their shares of the vessel. The burden of a part owner who can free himself from debt or obligation by the surrender of his interest in the veseel did not more urgently appeal to be lightened than that of him who must respond to the full extent of the liability, however small the value of the property. ** That end * would be promoted by discharging part owners from liability in solido for the debts of each other. A construction giving such discharge is consistent with the language of the act, conforms with the intention of congress, and regards strictly the defect to be corrected." In this case the claim is confessedly of a nature capable of being limited, the defendant has apparently taken no steps to ascertain whether there are other claims against him arising out of his conduct with the brig Crandon, and is content to rest upon the partial and entirely new protection afforded to shipowners by the first sentence of section 18 of the act of 1884. To this protection he is entitled, and, if hereafter other claims are presented, it will then be time enough for him to consider whether he should not seek the perfect discharge afforded to him upon surrender of the value of his decedent's interest by the second sentence of the act in question. This is in accord with the judgments in Whitcomb v. Emerson, supra, and Warner v. Boyer, 74 Fed. 873. I cannot, however, accede to the defendant's proposition that he is liable under the Dingley act for but one ninety-sixth of the amount herein allowed. Execu tors receive the estate of their decedents by the same will, for the same time, and with the right of survivorship. They are therefore joint tenants, seised per my et per tout, and the defendant, as such joint tenant, is liable as if he had owned in his own right as large a share of the brig Crandon as did his decedent. A verdict in favor of the plaintiff is directed for one thirty-second of $414.78, with interest, amounting in all to $15.68. (22 Misc. Rep. 749.) SCOTT v. IVES et al. (Supreme Court, Special Term, Jefferson County. February, 1898.) 1. WILLS-CHARITABLE BEQUESTS-VALIDITY. Laws 1860, c. 360, provides that no person having a wife shall by his last will devise to any benevolent, charitable, or religious society or corporation more than one-half of his estate after the payment of his debts, and such devise shall be valid to the extent of one-half, and no more. Held, that the fact that a devisee or legatee under a will is a foreign institution of the kind referred to in the act, and its charter or the law of the state of its domicile does not restrict it in receiving bequests, does not remove it from the operation of the limitation of the act. 2. ATTORNEY AND CLIENT-PRIVILEGED COMMUNICATION. Where an attorney drawing a testator's will sends for the testator's wife, to consult with her regarding her rights under the will, what she said in the conversation in relation thereto is a privileged communication, under Code Civ. Proc. § $35. 3. WILLS-CONSTRUCTION. Evidence that the wife of a testator about to make his will insisted, in a conversation between the testator, his attorney, and herself, that more ample provision should be made for her, but that, when that was denied her by the testator, she said that under no circumstances would she contest the distribution of his property, is immaterial for any purpose in the construction of the will, or to vary its terms. 4. SAME. The following words of a codicil: "But I do not expect that she (my wife) will object to the plan of my will and codicil, and I have always believed her to be in sympathy with my benevolent designs,"-clearly indicate that no agreement had then been made between the testator and his wife that she would not object to the plan of his will and codicil. 5. WILLS-CONTEST BY WIDOW. Where a wife made no objection to the probating of her husband's will, commenced no action to have it declared void, and, being made defendant in an action by the executor to construe it, united with other defendants in asking that it be interpreted according to law, and, through her answer by counsel, suggested the legal questions involved, this is not a contest on her part, estopping her from taking under a provision of the will that b quests to her should not take effect if, for any reason, she contested the same. 6. SAME ESTOPPEL. The wife of a testator, who continued to live on the farm where he died, the use of which he willed to her for life, and, with the consent of the executor, rented the same when a lessee's term expired, and accepted from the executor certain semiannual payments provided for by the will, with the understanding that the receipt therecf should not affect her rights under the will, or to the testator's property, is not thereby disqualified from asserting her full rights under the same. Action by Ross C. Scott, as executor, etc., against Lucina M. Ives and others, to construe a will. Construed, and ordered accordingly. Smith & Smith, for plaintiff. Rogers & Atwell, for defendant Lucina M. Ives. G. S. & H. L. Hooker, for G. S. Hooker, as guardian ad litem for Florence M. Howes and others. John Conboy, for Mary Bliven. Bradley Winslow, for Jennie II. Smith and others. W. A. Nims, for American Bible Society and others. 51 N.Y.S.-4 and 85 New York State Reporter. B. A. Field, for defendant Elmer T. Hall. Kellogg & Cobb, for defendant Emily Foot. Purcell & Carlisle, for defendants J. A. White and others. The MCLENNAN, J. Willard Ives, who resided in the city of Watertown, Jefferson county, N. Y., died on the 19th day of April, 1896, leaving neither father, mother, sister, brother, child, nor descendant of any child, but left a widow, the defendant Lucina M. Ives. At the time of his death he was about 90 years of age, and his widow was about 77 years of age. He left a last will and testament which bears date October 17, 1891, and a codicil thereto which bears date February 17, 1896. By said will and codicil Mr. Ives assumed to dispose of his entire estate, consisting of both real and personal property, and amounting in the aggregate to about $175,000. real estate constituted a very small part of the estate, and did not exceed in value the sum of $10,000. By the will the testator bequeathed to his wife, Lucina M. Ives, the use of a farm, of the value of about $5,000, during her natural life; also, the personal property thereon or connected therewith, absolutely, but which amounted to only a few hundred dollars. He also bequeathed to her an annuity of $1,000 ($500 to be paid semiannually) during her natural life; and he directed his executors to select such securities belonging to his estate, or to invest such sum, as would be sufficient to pay such annuity. All the rest, residue, and remainder of his estate he bequeathed to the "Following institutions, to be permanently invested by each of said institutions, and the income of such several investments to be used in the manner to be determined by the several boards of trustees of said institutions, and each of said investments shall be styled "The Willard Ives Fund,' namely: The American Bible Society, 25 per cent. of my estate, including both real and personal property. The Missionary Society of the Methodist Episcopal Church, 25 per cent. thereof. The Ives Seminary, 15 per cent. thereof. The Freedmen's Aid Society of the Methodist Episcopal Church, 10 per cent. thereof. The Methodist Episcopal Hospital in the City of Brooklyn, 5 per cent. thereof. The American University, 5 per cent. thereof. The Union Missionary Training Institute, 5 per cent. thereof. The Board of Church Extension of the Methodist Episcopal Church, 5 per cent. thereof." The will further provided as follows: "And it being my intention to dispose by this will of all my estate, real and personal, I hereby give and bequeath any and all residue and remainder of my property that may not have been disposed of by the foregoing paragraphs of this will to the several institutions hereinbefore named, in the same ratio and proportion by which I have made the several bequests to them severally hereinbefore." And it further provided: "And in case any of said institutions or corporations shall not accept, or shall be incapable of taking, under this will, then I give what would otherwise have gone to such corporation or corporations to the other corporations named, in the ratio and proportion by which I have made the several bequests to them severally." By the said will the testator appointed the defendant Lucina M. Ives, his wife, and the plaintiff, Ross C. Scott, of Watertown, N. Y., executors, and clothed them with the power of sale, in the following language: "And I hereby authorize them to sell and convey, by proper deeds, any and all of my real estate, or to contract for the sale of the same, and to lease the same, or any part thereof, and for the purposes of this will; reserving always, however, the life estate hereinbefore created in favor of my beloved wife. And I authorize them to convert my property into money, or to deliver to said institutions securities and stocks, at their market value, in payment of the said several legacies, in part or in full, upon their election to receive the same. said executors may select from my securities sufficient of stock and securities to yield the said semiannual payments of $500 to my said wife, or make investments for that purpose." My It is evident that the testator, by the will as thus made, intended that his wife, the defendant Lucina M. Ives, should have the use of the farm above referred to during her natural life; that she should have the personal property upon said farm and connected therewith, the household furniture, etc., absolutely; and that in addition she should have $500 semiannually during her natural life, to be derived from the income of securities owned by the testator, or to be derived from investments made by his executors out of his property. The balance of his estate then remaining, if any, or remaining after the death of his wife, whether consisting of real or personal property, he devised to the several institutions above named, according to the percentages therein named; and that, if any of said institutions were for any reason incapable of taking, the institutions capable of taking were to receive the share of the institutions incapable of taking, in proportion to the percentages named in the will. As before said, on the 17th day of February, 1896, the said Willard Ives executed a codicil to his said will, in and by which he revoked and annulled the bequests to the Ives Seminary and the Union Missionary Training Institute contained in said will, and in place thereof assumed to bequeath to the Ives Seminary the sum of $30,000, by the following language: "By this, my codicil to my last will and testament, I give to the Ives Seminary, located at Antwerp, Jefferson county, and state of New York, an institution of learning incorporated by the board of regents of the state of New York, the sum of thirty thousand ($30,000) dollars, to be safely invested by the said. Ives Seminary, and the income thereof to be applied for the benefit of the said seminary, so long as and upon the condition that said seminary shall be in good faith recognized and supported as a seminary under the charge and supervision of the conference of the Methodist Episcopal Church within whose jurisdiction said seminary shall be. The board of trustees of said seminary shall invest said moneys in good, safe, income-paying securities, and keep the principal sum unimpaired, and the income thereof shall be applied according to the directions of the said board of trustees. In case the said conference of the Methodist Episcopal Church shall at any time cease to exercise supervision over said seminary, and shall cease to give to the same moral support, this bequest shall terminate; and in such case I give and bequeath absolutely said principal sum to the American University, named and described in my will at paragraph 2, subdivision 6." And in addition to the annuity of $1,000 ($500 to be paid semiannually) bequeathed to his wife, the defendant Lucina M. Ives, he gave to her, by the codicil, an additional sum of $500, payable semi and 85 New York State Reporter. annually during her natural life, which would make her annuity the sum of $2,000 per annum; the payment of such annuity to be secured in the same manner as provided in and by the will. The said codicil also contained this provision: "All bequests to my said wife in my will and in this codicil shall not take effect if, for any reason, she contests my will or this codicil; but I do not expect she (my wife) will object to the plan of my will and codicil, and I have always believed her to be in sympathy with my benevolent designs. I hereby, as modified by this, my codicil, ratify my last will and testament as aforesaid; and, as so ratified, my will and this codicil express my clear purpose that my property shall forever benefit the good." It is clear that the purpose of the testator by his will, as modified and changed by the codicil, was that his wife, the defendant Lucina M. Ives, should have the use of his farm situated in Jefferson county, N. Y., during her natural life; that she should have absolutely the personal property upon said farm or connected therewith, the household furniture, etc., and that she should have annually an income of $2,000 during her natural life, to be paid to her from the income of securities from his estate, or from investments made by his execu tors from the avails of his estate, and that then the Ives Seminary should have $30,000, and that the other institutions above named should receive the remainder in the proportions named in the will, and that, after the decease of his said wife, the farm, and the property or securities from which the annuity of $2,000 a year to her was to be derived, should be distributed between such institutions above named, except the Ives Seminary, in accordance with the percentages named in the will; and that, if any of said institutions named were incapable of taking, the institutions capable of taking would receive the share of the institution or institutions incapable of taking, in the proportion named in the will. The said will and codicil were duly admitted to probate, without objection, on the 30th day of July. 1896, and the plaintiff duly qualified as sole executor; the other execu tor named in the will, the defendant Lucina M. Ives, having refused to qualify. The plaintiff, as sole executor, brings this action to obtain a construction of the will and codicil; and the widow, the defendant Lucina M. Ives, the institutions named as legatees above named, also the heirs and next of kin of the testator, are all made parties defendant. It is urged on behalf of the widow, Lucina M. Ives, and on behalf of the defendants the heirs and next of kin of the testator, that the bequests to the institutions above named, in excess of one-half of the estate of the testator, are void, under chapter 360 of the Laws of 1860, and that, as to such one-half of his estate, Willard Ives died intestate. The attorney for the institutions above named insists that the bequests to them are valid, to the full extent of the personal property, at least, for the reason that the widow is estopped from questioning the provisions of the will, and that she has elected to take under the will. This is also the contention of the plaintiff. It is also contended that certain institutions are not affected by the statute of 1860, and that, therefore, under the provisions of the will, such institutions are entitled to take the share or the proportion of the |