The question is, whether Claflin, as the executor of the will of Fisher, can be charged as the trustee of Wells, the husband of the legatee; and this depends on the construction of the will. Mrs. Wells, wife of the principal defendant by her second marriage, was the mother of the testator, who was *243her son by a former marriage, and her only child. She was therefore his sole heir at law, and would have taken his property by inheritance, had he died intestate. Under these circumstances he made his will, by which, subject to his own debts, he gave all his property to his mother, “to have and to hold the same, to her, her heirs and assigns, to be for the sole use of herself, her heirs, executors, administrators and assigns.” The court are of opinion that this was a gift to the separate use of the wife as a feme covert, to the exclusion of the husband and his creditors, as much as if more express words of exclusion had been used. We lay no stress on the statement made, in the trustee’s answer, of his personal knowledge as to the intent of the testator; and we think it would not be received as affording any aid in the construction of this will, whenever the question. should arise at law or in equity. The intent of the testator is certainly to govern ; but it is the intent expressed by the will, or fairly collected from it, and from the circumstances under which it was made. Tucker v. Seaman’s Aid Society, (ante, 205.) But the fact, that the legatee was the mother of the testator, and his only heir, and that she had a husband living, are circumstances which may be legitimately resorted to, and which tend to give effect to the words, “ for her sole use.” And perhaps the fact of her living separate from her husband at the time may be considered as a circumstance of the same tendency, though not necessary in the present case. The words “ sole use,” in a deed, bill of sale, or even a will, after an absolute gift to a man or to an unmarried woman, might, under some circumstances, be regarded as one of those pleonastic expressions, so common in conveyancing, which do not affect the construction. But when the gift is by a son to a mother who is the wife of a man not his father, the words “ to her sole use ” come to have a clear significance of his intent to make a provision for her personal benefit. And the fact of making a will, by means of which he could give it to her separate use, when she would have taken the same property by inheritance, but by a title which would enable the husband and his creditors to appropriate it, is strong corroborative proof of the intent of the testator to give the property to his mother, for her separate use.

Trustee discharged.