They inserted these beams at such points and in such a manner that the engine could not be run. The consequence was that, for want of such power, the defendant was unable to use his second floor for the purpose to which he had devoted it. This condition of things lasted for several months, and constituted the partial eviction of which complaint is made.

Upon this state of facts a verdict for the plaintiffs was directed, and, we think, properly. The plaintiffs were in no wise responsible for the acts complained of. Their license was to enter, to do what was necessary for the preservation of the demised premises, not to do anything which might injure them. The moment the contractors did anything contrary to the terms of the license they became trespassers, and the defendant had his remedy against them for the damages caused by their unauthorized acts. These contractors and their employes were not the owner's servants, nor were they brought within that relation by the license. The sole effect of the license was to throw upon the person making the excavations the duty of preserving the wall of the demised premises from injury. Consolidation Act, above cited. That duty is, by the act, dependent upon the granting of the license. If, therefore, such license had been here refused, and in consequence the wall had been injured, the defendant would have had just cause for complaint against the plaintiffs. He certainly has no such cause where the license has been given, but abused.

The defendant also overlooks the fact that the entry here was necessarily under his own authority. Either that, or it was a trespass, notwithstanding the plaintiffs' license. The defendant had exclusive possession of the premises, under his lease, and he could not be disturbed in that possession without his own consent. His license, as well as that of the owner, was therefore necessary. Johnson v. Oppenheim, 55 N. Y. 280; Sherwood v. Seaman, 2 Bosw. 130. And if the contractors exceeded the limits of such license the defendant had his remedy.

This

The defendant asked to go to the jury on the question of eviction, and also as to the damages claimed in his counterclaim. was properly refused, for two reasons: First, because there was no eviction, in that the defendant has continued throughout in the legal occupation of the entire premises. Boreel v. Lawton, 90 N. Y. 297. He never relinquished possession even of the engine room or second floor. Second, because a counterclaim was not available in an action on the lease for rent due thereunder. Eviction was necessary to constitute a breach of the covenant of quiet enjoyment, but, as we have seen, there was no eviction. For the wrong done to the defendant the plaintiffs, as already pointed out, are not responsible. But, even if they were, the right of action for that wrong could not be the subject of a counterclaim, for the reason, as was said in Boreel v. Lawton, supra, that it does not arise out of the contract or transaction set forth in the complaint, nor is it connected with the subject of the action, nor is it a cause of action on contract. See the cases there cited; Edgerton v. Page, 20 N. Y.

281; Lounsberry v. Snyder, 31 N. Y. 514; Insurance Co. v. Sherman, 46 N. Y. 370; and Levy v. Bend, 1 E. D. Smith, 169. The exceptions should therefore be overruled, and judgment rendered for the plaintiffs on the verdict, with costs. All concur.

In re TURFLER'S ESTATE.

(Surrogate's Court, Rockland County. May 16, 1892.)

1. ACCOUNTING BY EXECUTORS-CONSTRUCTION OF WILL.

Testator gave his widow "the income" of all his property, "both real and personal, as long as she lives, for her benefit and support," but provided that out of the income his wife should "pay all necessary repairs upon the buildings, and all taxes, besides insurance." The executors were empowered to pay debts and funeral expenses, and after the wife's death to sell all the property, real and personal, and pay legacies; and it was provided that testator's sons should "not come into possession of their property" until after the death of the widow, unless she should consent in writing. Held, that the wife was given a life estate in the property, and was entitled to possession and control thereof for life, and that the executors, having, under a power of the wife, collected rents and income from the property, the estate was not chargeable with the expenses of collecting the same, repairs, taxes, and insurance.

2. SAME-COMPENSATION OF EXECUTORS-AGREEMENT WITH BENEFICIARIES. After the death of the wife, all the parties interested agreed with the executors that they should be exempted from further duty or obligation, and that for the purpose of fixing their compensation the property should be considered as of a stated value, and as if such sum were cash, and they should be paid a named amount in full for all commissions. Held that, though the executors had not converted the property into cash, the beneficiaries were precluded from denying the right of the executors to compensation, and the latter were estopped to demand a larger amount than that agreed on.

3. SAME-SERVICES OF BOOKKEEPER.

The services of a bookkeeper, which were rendered for the benefit of the income estate of the widow as well as the estate held by the executors. should be apportioned between the two estates.

Final judicial settlement of the accounts of Jacob C. Turfler and George F. Turfler, as executors under the last will and testament of George C. Turfler, deceased.

Scott & Upson, for executors.

T. C. Cronin and I. Newton Williams, for contestant.

WEIANT, S. The testator, George C. Turfler, died, leaving a last will and testament which was admitted to probate in this court, and letters testamentary granted thereon to Jacob C. Turfler and George F. Turfler, the accounting parties herein, on or about May 17, 1875. This last will and testament contained the follow

ing provisions:

"First. My will is that my executors hereinafter named shall pay all my just and lawful debts, including funeral expenses and physicians' bills, as soon after my death as is practicable. Second. I give unto my beloved wife, Elizabeth, the income of all my property, both real and personal, as long as she lives, for her benefit and support; but out of the above income my wife,

Elizabeth, must pay all necessary repairs upon the buildings, and all taxes, such as Croton, government, state, county, and city, besides insurance, etc.; and after the death of my said wife, Elizabeth, my will is that all the property of which I die possessed or seised (except as hereinafter stated) shall be divided amongst my children and legatees as follows, viz.: * * * Third. My will further is that my executors hereinafter named shall pay unto the following named persons the legacies I herein bequeath within one year after the death of my beloved wife, Elizabeth, unto," etc.

Here follow the names of several legatees to whom specific sums are bequeathed, and then the testator further disposes of his estate in these words:

"My will further is that my executors hereinafter named shall sell all my property, both real and personal, (except such property as I hereinafter be queath unto my two sons Francis A. Turfler and Jacob C. Turfler,) and upon the sale of any of my real estate I do hereby authorize my executors to give good and sufficient deed or deeds to the purchaser or purchasers thereof for the conveyance thereof. The sale of the above property shall not take place until after the death of my wife, Elizabeth, and within two years thereafter."

*

*

Then follow certain devises and provisions in relation to the testator's three sons, and the testator then adds:

"My will is, and I wish to be understood, that my sons Francis A. Turfler and Jacob C. Turfler shall not come into possession of their property until after the death of my wife, Elizabeth, unless she consents thereto in writing." "Eighth. After paying the legacies above described, my will further is that my executors pay all my just debts, and after that to dispose of the balance as follows."

Provisions making absolute disposition of such balance of the testator's estate, and appointing the accounting parties herein executors of his will, then follow.

These executors caused an inventory of the personal estate of the testator to be made and filed August 2, 1875, showing an aggregate of personal assets of $42,006.16. From the accounts filed herein, and the summary statement thereof, it appears that the executors have charged themselves as having received the aggregate sum or amount of $166,569.20, and credited themselves as having paid out the sum of $161,181.83, leaving a balance in their hands. of $2,115.40. Of the moneys or properties so charged to themselves as receipts, between $111,000 and $112,000 appear to have been rentals of the real estate devised by the testator, and some $5,000 to $8,000 as income from other properties and sources. Of the sum of $161,181.83 the amount of $1,962.20 appears to have been paid for burial expenses and a monument for the testator's grave, the sum of $407.79 for his debts, while about $72,000 was paid to the widow as income, about $9,000 for repairs of buildings, about $25,500 for taxes, about $1,300 for insurance, for commissions to agents for caring for and renting of houses about $900, and for services of a bookkeeper $950. The contestant objects to the allowance of the $950 for compensation to the bookkeeper, and the further sum of $100 for the same purpose; to the item of $1,250 for services of attorney and counsel not heretofore paid; and to the items aggregating $1,455, retained as commissions by the executors; and in

sists that the accounts of the executors, so far as the same relate to or include the receipt and disbursement of moneys received by them for the rents of the real estate and for the payments made in respect thereto, that the same should form no part of their account as executors; that no commissions are therefore legally allowable thereon; and that no part of the expenses of managing the estate during the widow's lifetime is allowable on this accounting.

Thus the main question submitted for determination is whether or not the will devolved upon these executors the administration of the testator's estate during the lifetime of the testator's widow. After careful consideration, I have reached the conclusion that it was the intention of the testator to give his widow a life interest or estate in his property, and to vest her with the possession and control thereof, and during her lifetime to give no title thereto or control thereof to his executors, except for the payment of his debts and burial expenses. The intention of the testator is controlling where he contravenes no rule of law, and to give effect to such intention is the primary rule of construction applied by courts in construing wills. Redf. Law & Pr. Sur. Cts. 251. The testator, as we have seen, gives to his widow "the income" of all his property, "both real and personal, as long as she lives, for her benefit and support." As he gives to no one else any authority or control over his estate, not even his executors, by any provision of the will, I think the necessary implication arises that his widow, who was to receive the benefits accruing therefrom for her lifetime, must have been regarded by him as the one who should have the custody and control of such property, in order that such income could be realized and received. But there are other provisions of the will that indicate that the widow, and not the executors, was to be the manager and possessor of the testator's property during her lifetime. He adds to the bequest and devise of "the income" to her these words: "But out of the income my wife, Elizabeth, must pay all necessary repairs upon the buildings, and all taxes, besides insurance." The obligation to make these payments put upon her necessarily implies that upon her is devolved the duty of also caring for and managing the properties. And clearly these specific provisions as to his widow's right to receive the income, and the duty to maintain the property in due condition, and save it from the ordinary bur dens which a life tenant usually discharges, in the absence of any authority, power, or trust in words conferred upon the execu tors, indicate that the executors, as such, were in no wise to act in that behalf during the widow's lifetime. Even the power of sale conferred upon the executors is in specific language restricted and prohibited until after the death of the widow. It thus appears that the testator intended that even this limited power given his executors should not be exercised during his widow's lifetime, confirming the view that it was the testator's purpose to make her the virtual owner, controller, and possessor of his property during her lifetime, free from the interference of the executors, or any

of those who were made objects of his bounty, and postponing all their rights and the enjoyment of their estates until after her death.

A further circumstance indicating that the testator intended that his widow alone should have the benefits of his estate, and manage and possess the same, is furnished from the explicit language of his will, wherein he says:

"My will is, and I wish to be understood, that my sons Francis A. Turfler and Jacob C. Turfler shall not come into possession of their property until after the death of my wife, Elizabeth, unless she consents thereto in writing."

The word "income," as used by the testator, clearly means all benefit and profit whatsoever coming from the property, whether from use or otherwise; and the necessary implication follows that the widow was given the right to use or occupy the same, or otherwise obtain income or profit or benefit therefrom. A gift to a widow of the rents and income of real estate for life creates an estate in the realty itself, and, if no duties are charged upon the executors with respect to their collection or application, no estate or trust is created in them in respect thereto. Macy v. Sawyer, 66 How. Pr. 381. This is not a case like Marx v. McGlynn, 4 Redf. Sur. 455, cited by the counsel for the executors. There the testator's will read: "It is my will that my executor pay A. B. all the income derived from my estate after paying the necessary expenses accruing thereon." Nor is it similar to Betts v. Betts, 4 Abb. N. C. 317, where the testator directed that the income, rents, etc., be paid by his executors to a beneficiary. Nor to Tobias v. Ketchum, 32 N. Y. 319, where the executors were clothed with full power to rent, lease, repair, and insure. In Re Blauvelt,

30 N. E. Rep. 194, the court of appeals recently decided that where the widow was given a life estate in the testator's property, and with a power of sale, the executrices, as such, were not entitled to receive the rents and income of the property; that they had no power over or right to the possession of the property in its original form or of the proceeds after the sale thereof, or to compel an accounting therefor; that the executrices, as such, had no interest in the matter, and that they were not accountable or responsible for the income or the principal estate during the widow's lifetime. To entitle an executor to receive and hold property under the will of his testator and receive compensation for managing or administering the same it must appear affirmatively from the instrument and the rules of law applicable to the construction of the same that such right or power is conferred upon him. The only provision in this will that is to be given effect by the executcrs during the lifetime of the widow is the one directing the payment of the funeral expenses and debts. Nothing appears that requires or empowers them to receive the rents and profits, or during such times imposes upon them any trust. "A devise of lands to executors or other trustees, to be sold or mortgaged. where the trustees are nct also empowered to receive the rents and profits, shall vest no estate in the trustees, but the trust shall