¶1[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *33 The surrogate had authority to make the decree in question.
¶2He is authorized to direct and control the conduct, and settle the accounts of executors and administrators, and to administer justice in all matters relating to the affairs of deceased persons, according to the provisions of the statutes of this state (2 R.S. 3d ed. 318, sec. 1, sub. 3, 16).
¶3The question we are now considering, assumes that Mrs. Sheldon, under the statutes of this state was entitled to the articles of personal property mentioned in section 9, R.S. 3d ed. 147; and, in addition, to the amount of one hundred and fifty dollars, provided by the law of 1842 (2 R.S. id. sec. 11). *35
¶4No exemption was made by the appraiser's under either statute, and the executors subsequently sold at public auction the property set forth in the inventory.
¶5The proceeds of this sale in the hands of the executors constituted a trust in favor of the widow, to the extent of her interest in, or claim upon the property of the testator under the statute. She might affirm the sale, and it would be the duty of the executors, as trustees, to pay over the avails to the legal and equitable proprietor. If they refused, the surrogate in virtue of his power to control their conduct, "and to administer justice, in all matters relating to the affairs of deceased persons," could compel their obedience. This he has done by his decree, and no objection is perceived to the exercise of this power.
¶62d. The surrogate gave the true construction to the statutes upon this subject. The eleventh section, was not a substitute for the ninth and tenth of the former law, but an additional provision. This is obvious from the language of the concluding clause of the section first above mentioned, which is the second section of the act of 1842. Again, it is an established principle, that a provision in the will of a husband in favor of the wife, will never be construed by implication to be in lieu of dower, or any other interest in his estate given by law; the design to substitute one for the other, must be unequivocally expressed. So of different statutes in relation to the same subject, one will not be so construed as to repeal the other, unless the legislature so declares, or unless the implication is absolutely necessary.
¶73d. The antenuptial agreement between the respondent and her husband, is not a bar to any interest of the former in the personal estate of the testator. The supreme court determined correctly, that the respondent looked to a performance and not to the mere covenant of her intended husband, as the consideration of relinquishing claims upon his estate, which would be effected after his death (Greenleaf Cruise, vol. 1, p. 203, 317). The agreement was not *36 performed by the testator, who not only omitted to make the provision contemplated by the contract for the respondent, but so disposed of his estate by his will as to place it beyond the power of his executors to make such provision, without departing from his instructions. It is idle to talk of the wife being bound by an agreement which the husband in his lifetime virtually repudiated.
¶8There is as little foundation in the argument, that the widow is concluded by her possession of some part of the property under claim of right through the antenuptial agreement.
¶9If she is concluded, those who claim title under the will must be also; or the estoppel would not be mutual. But the devisees and legatees have not assented to or acquiesced in her claim or possession; and the executors could not because they have no power to bind devisees, by setting apart a parcel of the real estate in opposition to the will of the testator, from which they derived their authority.
¶10The judgment of the supreme court should be affirmed.
¶11MASON, J., read a written opinion in which he arrived at the same conclusions with Judge Gardiner.
¶12WILLARD, J., in a written opinion, concurring in the views of Judge Gardiner, held that the discretion given to the appraisers under the statute of 1842, has reference mainly to the articles to be inventoried and set apart for the widow, and can never be referable to the amount when the personal property left by a testator exceeds in value one hundred and fifty dollars.