Welles v. Bailey. corner after it had been washed away, leaving all beyond it to accrue to the Benton lot from which it was originally taken. So far as this claim is founded upon the fact that this corner was originally upland and not riparian we have already considered and disposed of it. It is only as the corner has become submerged and afterwards restored on the other side of the river that the claim presents any matter for further consideration. The defendants' idea, as we understand it, seems to be that the right of a riparian owner is like the right of an owner of land upon a highway. The latter owns to the middle of the highway upon the theory that the highway was originally taken out of the adjoining land, and on this ground it reverts to the original owners if the highway is discontinued. The claim of the defendants seems to be that the right of a riparian owner extends under the water on his upland lines in the same manner and that those lines are decisive of his rights in case of a recession of the river. But the two cases have nothing in common. They rest upon entirely different theories. The riparian owner takes the land under the stream because the stream is a natural boundary and not because the land was once his. Whenever a portion of a riparian lot is washed away by the river, the riparian owner becomes entitled to the land under the water as far as the center of the stream, without any reference to the original limit of his land or to his upland lines. He takes whatever front upon the river its change of bed gives him and by lines that run from the termini of his upland lines at right angles to the center line of the stream. We are speaking now of non-navigable rivers, but the same rule applies in the case of navigable waters, the lines to low-water mark being extended on the same principle. All the authorities agree in this. Thus in Gould on Waters, § 162, it is said that "every proprietor is entitled to frontage of the same width on the new shore as on the old shore, and at low-water mark as at high-water mark, without regard to the side lines of the upland. ** In general the lines of division are to be made to * Davies v. Davies. the channel in the most direct course from the lateral It necessarily follows from this reasoning that the land of the plaintiff took by accretion all that lay between its river front on the west side of the river and the receding bed of the river, and within lines drawn from the termini of its side lines at right angles to the channel of the river. And within these lines falls the land in dispute. As the view we have taken disposes of the case, it is not necessary that we should consider the question, presented by the record, with regard to the rights acquired by the plaintiff by adverse possession. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred. ALICE S. H. DAVIES AND OTHERS, EXECUTORS, vs. JOHN Hew Haven Co., Dec. T., 1886. PARK, C. J., CARPENTER, PARDEE, A testator, after making certain bequests, divided his property equally among all his children, with a provision that one fifth of the share of each son should be invested for his use during his life and the income paid him, and that on his death it should be "distributed or go to his personal representatives who would be entitled to his personal estate according to law." One of the sons died leaving a widow, to whom by his will he gave all his property. Held— 1. That the title to the fifth had not vested in the son, and that his widow therefore could not take it under his will. 55 319 71 291 Davies v. Davies. 2. That the personal representatives of the son took it under the will of the father. 3. That his widow could not take a part of it as a distributee of half his personal estate if he had died intestate, and as thus coming within the terms of the will. 4. That by the "personal representatives of kin, and that they alone could take. of the son was meant his next [Argued December 7th, 1886-decided February 11th, 1887.) SUIT to obtain a construction of the will of John M. Davies, deceased; brought to the Superior Court in New Haven County, and reserved, upon facts admitted, for the advice of this court. The article of the will under which the questions arose is given, with the facts, in the prevailing opinion, and certain other parts of the will in the dissenting opinion. C. H. Farnam, for the executors. J. S. Beach, for the defendant Grace W. Davies. 1. If Cornelius Davies had died intestate, one half of his personal estate would, under the distribution laws both of Connecticut and of New York, go to his widow. Gen. Stat. of Conn., p. 373, § 8; Rev. Stat. of N. Y., vol. 2, p. 159, § 79. Under these laws, if he had died intestate, his widow would have been entitled to one half of this one fifth share held in trust, unless she is excluded from any distributive share therein, under the claim that she is not a "personal representative" of her deceased husband. We must bear in mind, while discussing this question, that we are not dealing with real estate, and with the title of heirs-at-law to such estate, but we are dealing with personal estate, and the rights of those who represent an intestate in the distribution of personal property. It is to be noted that the term "heirs" is not to be found in the will of John M. Davies. He intended that the rules of law governing the distribution of any portion of his property should, if any necessity arose for the application of those rules, be the rules governing the distribution of personal property, and not the laws prescribing the division of real estate among heirs. This is entirely Davies v. Davies. clear from the provisions with regard to the shares of the daughters. We stand, then, on solid rock, in asserting that the intent and meaning of the testator was, that in the event of either of his sons dying without children, intestate, the rules governing the distribution of personal estate should control the distribution of his share of the estate, and not the rules governing the division of real estate. But this is not a topic for argument. The testator, in this very ninth article, has told us in so many words that his intent and meaning in such an event was and is that the share of the deceased son shall be distributed as "personal estate "—"shall be distributed or go to his personal representatives who would be entitled to his personal estate according to law." If, therefore, Cornelius Davies had died intestate, there would seem to be no question but that his widow would have been entitled to one half of this sum of $33,333. But he did not die intestate. He left a valid will, giving all his property to his widow. It will hardly be claimed that the effect of such a will could be to extinguish or diminish any of the rights of the widow in the estate of her deceased husband to which she would have been entitled if there had been no will. The office of a will is to set aside the distribution which the law prescribes for intestate estates and to substitute a mode of distribution more in accord with the testator's wishes. There can be no question but that it was the intent and meaning of his will that his wife should take his entire estate, including this fund of $33,333, to the exclusion of his brothers and sisters. Our only enquiry, therefore, as it seems to us, is, whether there is anything in the law which will prevent the court from advising the executors to carry out that clear intent and meaning. This enquiry carries us back again to the will of John M. Davies, and we are there told that this $33,333 "shall be distributed and go to the personal representatives of Cornelius C. Davies, who would be entitled to his personal estate according to law." Certainly the law does not exclude the wife from the circle of "personal representatives "of her deceased husband. On the contrary the law recognizes her as being within that VOL. LV.-21 Davies v. Davies. circle. And as being such a personal representative, it enacts, in the event of her husband dying intestate, leaving no children, that she shall represent in her person, and through her personality, one half of his personal property. 2. There is another aspect of this case which leads us to the same result by a shorter path. The petition refers to this $33,333 as a "trust fund," and thus far we have spoken of it under the same title. But it is not a trust fund in the ordinary sense of that term. Neither of the words “trust" or "trustee" is used in this carefully drawn will. The distributive share of Cornelius Davies, under his father's will, was $166,666; of this amount four fifths, being $133,333, was paid over to him, and one fifth, $33,333, was not paid over to him, but was retained by the executors under the ninth article of the will. All executors are, to a certain extent, trustees. These executors were trustees of the $133,333, being the four fifths share of Cornelius Davies, until they paid it over to him. They continued to be trustees of his remaining one fifth share during his life. But his title to his one fifth part of this share so distributed to him was as good as his title to his four fifths part of that share. The time of its payment was deferred until his death, and then it was to go to those who should represent him; if he should die intestate, to those who would represent him under the statute law; and if he died testate, to those whom he should by his will select as his personal representatives. We submit that the representative of his person, and of his rights of property in this personal estate, is the legatee under his will, and not his next of kin. This case is to be determined by the manifest intention of the testator, John M. Davies, as gathered from the will itself, and not by any arbitrary rule of law; but if the counsel for the next of kin shall present it as one to be governed by some one or more of the numerous conflicting authorities which seek to determine the will of a testator by the application of such arbitrary rules of law, then we say that the weight of authority is that under a bequest to one for his use during life, and upon his decease to his personal representatives, the personal |