40 N.J. Eq. 369 | New York Court of Chancery | 1885
Theodore Lanning, deceased, late of Mercer county, died December 28th, 1884. By his will, dated February 24th, in the same year, after ordering that his debts and funeral expenses be paid, and that grave-stones be placed at his grave and an iron fence around the graves of his father and mother and himself, he gave to his brother, George W. Lanning, an annuity of $140 for life, and to the wife of the latter a life annuity of $80. He then gave two pecuniary legacies; to John W. and William Lanning he gave the “ notes of hand ” which he held against them. He then made several bequests of sums of money to different persons. To Theodore L. Jones he then gave a house and lot and a woodlot, and then gave several legacies of sums of money to different persons and specific legacies to two of them. Then follows this provision:
“ It is my will that none of these legacies to be paid until after the death of
Among the pecuniary legacies of particular sums before mentioned is one to Alfred Jones, of $150, with provision that the legatee’s father is to have the interest thereof during his life. Alfred Jones died in the lifetime of the testator. • The wife of George W. Lanning also died in the testator’s lifetime. Among the legacies is one to Sarah, daughter of Elizabeth Waters. The legacies together amount, irrespective of the annuities, to $3,960. The personal estate, not including the promissory notes herein-before mentioned specifically bequeathed to John W. and William Lanning, amounts to $2,429.24. The debts already presented for payment amount to $1,063.50. Deducting that sum from the amount of the personal estate there is left a balance of $1,365.98, out of which are to come the expenses of administration. The testator owned other real estate besides the property specifically devised to Theodore L.. Jones. Such other real estate is valued by witnesses at about $12,000 or $13,000. As has been seen, the personal property will fall far short of paying the legacies. The executors have not been able to discover any person answering the description of Sarah, daughter of Elizabeth Waters, but the testator had a 'great-great-niece named' Sarah, who was the daughter of his great-niece, Elizabeth Wasson. •
The executors seek directions as to their powers and duties. George W. Lanning (brother of the testator) insists that the testator died intestate of all his real estate except that which he specifically devised to Theodore L. Jones; or, if not of all of it, then of so much of it as will not be required for the payment of the legacies. Sarah E. White, Rebecca A. Winder and Ralph C. Lanning insist that the testator devised all of his real estate, and while they admit that the executors have power to sell land to pay the legacies, they insist that the executors have no power to sell any more than enough for that purpose.
The testator clearly intended to charge all the legacies upon his real estate not specifically devised. The evidence of such intention is found in the fact that after giving the legacies (which
The legacies other than the gifts to George are not to be paid, .and the division under the residuary clause is not to take place-until after the death of George. The testator intended that his estate, except so much as should be required to satisfy the bequests in favor of George and his wife, should be accumulated.
The legacy to Sarah, daughter of Elizabeth Waters, was undoubtedly intended for Sarah, daughter of Elizabeth Wasson.
The legacy to Alfred Jones lapsed by his death in the testator’s lifetime. Its extinguishment by lapse extinguished, also, -the claim of his father to interest thereon.