American Baptist Home Mission Soc. v. Foote, 5 N.Y.S. 236

American Baptist Home Mission Soc. v. Foote

5 N.Y.S. 236 | N.Y. Sup. Ct. | 1889

Merwin, J.

It is claimed by the appellants that the complaint is insufficient on its face, because it does not state whether the plaintiff the American Baptist Missionary Union is a foreign or domestic corporation, as required by section 1775 of the Code. It was held at special term that this section was substantially complied with, inasmuch as the facts were stated from which a conclusion must follow under the definition given in subdivision 18 of section 3343. This is a reasonable construction, and should be followed. Ho point is made on this subject as to the other plaintiffs. If the complaint is good as to them, there is some doubt at least about the ground of demurrer as taken being available. If the point is made as to all the plaintiffs, it is not entirely clear that demurrer in this form will lie. Bank v. Corbett, 10 Abb. N. C. 85; Furniture Co. v. Grumme, 10 Civ. Proc. R. 176. But that question need not now be decided.

It is further claimed that under the will in question the legacies are not a charge on the real estate. There is no specific charge. The legacies are given, and then comes the residuary clause, “all the rest, residue and remainder of my property. ” The effect to be given to such a residuary clause has been a matter for consideration in a great many cases, with results not in harmony. The latest expression of the views of the court of appeals is found in Brill v. Wright, 19 N. E. Rep. 628. It is there said that the eases in this state establish these two propositions: First, that general language in a will giving legacies, followed by the usual residuary clause, is alone insufficient to charge the legacies on the realty and, second, that such language will justify such charge, if it is made to appear by extrinsic circumstances, such as may, under the rules of law, be resorted to to aid in the interpretation of written instruments, that it was the testator’s intention that the legacies should be charged on the land. In that case, the testator, after providing for the payment of debts, gave to B. the sum of $2,000, to be paid within three months after his (the testator’s) decease, and then gave “all the rest and residue of all my real and personal estate” to other parties. It appeared that the debts were small, and that the personal estate would have been sufficient to pay the legacy, had it not been for extraordinary expenses in the proof of the will and on the ac-. counting. It was held that the legacy was not a charge on the real estate. Significance was given to the fact that under ordinary circumstances the personal estate would have been sufficient, and to the fact that the legacy was made payable in three months. It may be that, under the rule laid down in the above case, the legacies in question would not, upon the face of the will, be a charge on the real estate. It is, however, alleged, and it is a proper circumstance to be considered, that the testatrix did not have sufficient personal property to pay the legacies in full. A circumstance of this kind,'—an inadequacy for the payment of legacies,—although greater in degree, existed in the case of McCorn v. McCorn, 100 N. Y. 511, 3 N. E. Rep. 480, and was considered very significant on the question of intention. There was there, as *238here, the use of the expression “the rest of the property,” and that was deemed important. There was in the mind of the testatrix, in the use of the residuary clause, no distinction between real and personal property. It was all apparently as one mass, from which she took and devoted to certain purposes certain sums and the rest or balance gave to the residuary legatee. In this respect this case differs from the Britt Case. The complaint does not allege the date of the will. The allegation of inadequacy is general. We cannot assume there was any material change in the estate between the date of the will and the death. We must rather assume, that inadequacy of the personal estate, as alleged, was known to'the testatrix. If the estate was depleted by any éxtraordinarv circumstances after the death, or after the will was made, that is matter to be developed at the trial. The ordinary expenses of settlement the testatrix is supposed to have taken into account. Nor can we assume that the amount of deficiency—about one-third—is such as can be fairly ■called a small and unexpected lack of personal property, so as to have no bearing on the question of intention. It is not to be presumed that the testatrix would in form give $2,700, to be paid out of a fund of $1,800. Having in view the allegation of inadequacy and the form of the residuary clause, we are •of the opinion that under the complaint the real estate would be chargeable with the balance of the legacies. It follows that the judgment should be affirmed, with costs, with leave to the defendants to answer upon payment of ■costs of demurrer and of the appeal. All concur.