Opinion of the Court, per RUGER, Ch. J. of this property, may be made to accord with what must instinctively be felt by all persons acquainted with the circumstances, to have been the wish and desire of the contracting parties. The question is not wholly free from doubt; but following the rule which obtains in the construction of all contracts, viz., that the intentions of the parties must control, we can reach a conclusion which seems to us to be reasonably satisfactory. This contract must be regarded as one drawn with great care, with a full understanding of the precise meaning of the language employed, and an intention that each word and sentence shall have its appropriate influence and effect upon the construction of the instrument. It will thus be seen that following the general words containing a description of the property covered by the clause, there occur expressions intended to effect a limitation of their meaning, and confining it to such property as is used in a particular manner. We do not think that the courts below have given that effect to the words of this limitation which they are justly entitled to, considering the obvious intention with which they were employed. They were evidently used to exclude from the operation of the agreement all such property as was employed for the use and enjoyment of the respective parties individually, as well as that not in use for family purposes; and, we think, that class of property also in the nature of heir looms, which is rendered valuable mainly because of its relations to, and associations with the family by whose members it was acquired, and to whom it naturally belongs. It can hardly be supposed that Mr. Fillmore intended that any articles of property which came to him as incidents of the high office. he had filled, and which would be desirable to his family as evidences and mementoes of the distinction enjoyed by him, should be taken from them upon his death, and conferred upon strangers to his blood. Neither, we think, can it be supposed that a valuable gallery of paintings, such as that possessed by Mrs. McIntosh at the time of her marriage, and subsequently used to adorn the walls of the family residence, Opinion of the Court, per RUGER, Ch. J. could have been intended to pass under the general designation of furniture or other "personal property," as used in this contract. We are also quite unable to suppose that the parties to the contract were, when drafting the clause in question, inluenced by mercenary considerations or made nice calculations with a view of balancing the pecuniary benefits to be derived by them respectively therefrom, or weighed with scrupulous exactness the financial possibilities of the contemplated marriage. It is significant of the intention of the parties that the prior clauses of the contract had determined clearly and definitely the interest which the respective parties should take in the property of the other, not only during their lifetime, but upon the death of either, and the clause in question was the last provision of the contract and was apparently of minor importance, introduced for the purpose of securing the comfort and convenience of the survivor of the marriage. We think a reasonable and fair construction of the contract leads to the conclusion that this clause was inserted for the purpose of providing for the continued use and enjoyment by the survivor, of the family property, which they had both been accustomed to use in their domestic life, and the continued enjoyment of which was essential to the personal comfort and convenience of those who had been habituated to its daily use. No other construction is consistent with our idea of the high character, distinguished position and refined tastes of the parties to the agreement Such property was intended to pass as was "in use by the parties for family purposes," and no other. The question presented is widely different from that which would have arisen had the words of limitation been omitted. We have been referred to no case which seems to us to be in point upon the question involved here, and the case must, therefore, be decided by the construction to be given to the peculiar language of the particular contract, and the inferences which we are able to draw therefrom as to the intention of Opinion of the Court, per RUGER, Ch. J. the parties, in view of their situation and condition in life and the circumstances surrounding them. The main subject of contention between the parties is the library of Mr. Fillmore, the collection of which had occupied his whole lifetime, and to which, we may reasonably suppose, large additions were made during his incumbency of the office of president, and which were more or less associated with that distinction. This property would seem to have been under the consideration of the counsel who drew the contract, as it was much the most valuable possession of Mr. Fillmore's as connected with his residence, and it seems strange that horses, carriages and furniture should be specially mentioned, while this more important item should be left to the uncertain description of general words, if it was intended to be included therein. Neither paintings, books or a library are mentioned, and we cannot believe that the eminent lawyers who drew this contract would have omitted to describe them, or have left it a matter of doubt, if they had supposed such property was to be included in the provisions of this clause. The bulk of the books, which would naturally have been collected by such a man as Mr. Fillmore, would probably have little in them. to attract the notice or attention of a lady, and it may well be inferred that their acquisition by her would not be especially coveted, while to the relatives of his own blood their possession would naturally be an object of pride and satisfaction. It is not reasonable, we think, to suppose that Mr. Fillmore contemplated a disposition of this property upon the death of himself and Mrs. Fillmore, which would take it away from his immediate family and descendants, and confer it upon those who were not of kin to him, whose name would not recall his reputation, and who were not interested in its perpetuation. Such a construction is not necessary to satisfy the language of this contract, and, we think, it cannot be given to it without violating the intention of the parties. We also think that the silverware contained in the white tin box, and that purchased by the first wife of Mr. Fillmore SICKELS-VOL. LXVI. 33 Opinion of the Court, per RUGER, Ch. J. with the proceeds of a present made to her by ladies of New York while she occupied the presidential mansion, were not covered by the language of the contract. The evidence is undisputed that these articles were not in use for family purposes, but were kept in store by themselves, marked with the initials of Mr. Fillmore and other members of the family, and although occasionally examined, were not employed for family purposes in the ordinary and common acceptation of that term. It was in proof that on two or three occasions a few of the pieces of plate bought by the first Mrs. Fillmore were employed at public receptions as ornaments to decorate the table and rooms of the house; but the evidence wholly negatives the idea that they were used for family purposes generally. So, also, the wines acquired by Mr. Fillmore while he was president, and which were associated with Commodore Perry's expedition to Japan, were never used for family, or, indeed, for any other purpose, so far as appears. It is to be inferred that they were acquired by him as a gift, or present, from some officer of the Japanese expedition, and whatever might have been his intention as to their ultimate disposition, it is quite certain that he never intended them for ordinary or extraordinary family purposes, for it affirmatively appears that they were never so used during or after his lifetime. Whenever the family had occasion for the use of such wines. they were invariably purchased for the purpose. The other articles mentioned are too trivial in value to merit particular notice, and it is enough to say that trunks bought and used by Mr. Fillmore for his individual use, and property which had for a long time been excluded from the house as an incumbrance and obstruction, were not within the meaning of the language of the contract. We are, therefore, of the opinion that the judgments of the courts below should be reversed and a new trial ordered, with costs to abide the event. All concur. Statement of case. ELIAS A. MEAD, Respondent, v. CHARLES E. PARKER, Where, in an action upon a guaranty of collection of a debt, the defense is, that the debtor was not prosecuted with due diligence, evidence that a delay in prosecution was with the acquiescence of the guarantor, is competent, on the part of the plaintiff, as bearing upon this issue. Proof of such acquiescence is also competent, as showing a waiver by the guarantor of his strict right to take advantage of the creditor's indulgence, to avoid the guaranty. (Argued October 8, 1888; decided November 27, 1888.) APPEAL from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 22, 1886, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial. (Reported below, 41 Hun, 577.) The nature of the action and the material facts are stated in the opinion. James R. Cox for appellant. Plaintiff's laches and neglect. to collect for two and a half years discharged the guarantor. (Ins. Co. v. Wright, 76 N. Y. 447; McMurray v. Noyes, 72 id. 524; 6 Cowen, 624; 1 Wend. 455; 31 Barb. 94; 15 Hun, 346.) Every possible test which can be applied, shows that this covenant of defendant was "an agreement to answer for the debt and default of others," and nothing else. (21 N. Y. 415; 26 Wend. 435; Ackley v. Parmenter, 98 N. Y. 425; Milks v. Rich, 80 id. 269; Johnson v. Gilbert, 4 Hill, 178; Cardell v. McNiel, 21 N. Y. 336; Bruce v. Burr, 67 id. 237; Brown v. Curtis, 2 id. 225; Fowler v. Clearwater, 85 Barb. 146; Brown v. Curtis, 2 Comst. 225, 229, 528.) By the written agreement this defendant contracted for diligence in collecting the bond and mortgage. (Hill v. Blake, 97 N. Y. 218; Drake v. Seaman, id. 233; Holcombe v. Munson, 111 259 135 384 111 259 162 455 |