Florence v. Sands

4 Redf. 206 | N.Y. Sur. Ct. | 1880

The Sheeog-ate.—From the account and the testimony taken before the auditor, it appears that there was not sufficient personal estate, after the sale of the stock of goods, &c., to pay all of the legacies in full, but that •there was considerable rent realized from the store and the apartments above. The executors, out of the personal property and the rents, paid the general legacies, the monthly allowance for the keep of the horse, and the balance they applied towards the monthly allowance to Florence, having, however, a considerable arrear unpaid, in consequence of the executors having paid the interest "upon the mortgage mentioned, together with taxes, insurance and repairs.

The principal point raised by the exceptions to the auditor’s report, filed by Florence, is whether he was entitled, under the will, to full payment of his monthly allowance, in preference to the payment of interest, taxes, insurance and repairs aforesaid, and in preference also to the other legacies, out of the rents or in.come.

It is not only a fair presumption, but a necessary inference from the will itself, that the testatrix, when she executed the will, supposed she had sufficient personal property, over and above the specific legacy to McLotighflin and others, of the stock of goods, and other specific articles, to pay . the legacies to her two clerks, to Miss Swift, and to pay McLoughflin the $25 per month for the keep of the horse “Phil” ; and that the rents or income of her estate would be sufficient to pay the monthly sum to William Florence, after the payment of the interest on the mortgage, taxes, insurance. and repairs. It cannot be reasonably supposed that she contemplated such payment out of the gross rents, &c., for the reason that a failure to pay the interest on the mortgage, the taxes, insurance and repairs, would result in a sale of the property, and a loss of all rents.

I conclude, therefore, that the legacy to William Florence is of the nature of a demonstrative, legacy, to be paid out of the income of the estate, after the payment of interest on the mortgage, the taxes, insurance and repairs on the property, out of which rent was receivable, and the income of any property affording income ; and that as to such balance of rent and income, Florence has a preference.

This conclusion is strengthened by the fact that the executors are not vested with power to sell the real estate.

Williams, in his"treatise on Executors (4 Am. ed., vol. 2, p. 994), says that “ A legacy of quantity is ordinarily a general legacy, but there are legacies of quantity in the nature of specific legacies, as of so much money, with reference to a particular fund for payment. This kind of legacy is called by the civilians a demonstrative legacy, and it is so- far general, and differs so much in effect from one properly specific, that if the fund be called in or fail, the legatee will not be deprived of Ms legacy, but be permitted to receive it out of the general assets. Yet the legacy is so far specific that it will not be liable to abate -with general legacies upon1 a deficiency - of assets also, at page 1004, that£ c general legacies do not become specific because they are charged upon, or payable out of, the proceeds of real estate.”

£ 1 The onusprobandi is upon the party seeking priority, and proof must be clear and conclusive that the testator so intended, because, in the absence of such proof the testator must be deemed to have considered his estate sufficient to pay all.”

Redfield on Wills (vol. 2, p. 142, 3 ed.), on the authority of Sellon v. Watts (7 Jur. N. S. Dig., 134 ; 9 Weekly Rep., 847) and Mullins v. Smith (1 Drew. & Sm. 204), says : “ that a demonstrative legacy has the prior right to the fund, out of which it is directed tobe paid, as against all other claims, except those of creditors. If that is so, and it seems to be the present inclination of the English courts, demonstrative legacies have all the advantage of specific legacies, in regard to the fund upon which they are charged, and are exempt from the disadvantage attending specific legacies, that if the fund fails, ^either wholly or in part, it results to that extent in defeating -the bequest. For if the fund for a demonstrative legacy fails, the legatee may go against the general estate for the unpaid balance.”

The result of these authorities is that it was the duty ,of the -executors to pay the net rent and income to Florence, and that there was no authority to pay any portion thereof to the other legatees ; but that, as to any balance unpaid to him out of the particular fund, he is U- general legatee, and his legacy must abate with the other general legacies.

The sum directed to be paid for the keep of the horse iCPhiI,” from the nature of the case, would seem to be a preferred legacy, to be first paid out of the personalty, and it appearing that there was sufficient for that purpose, I am of the opinion that the executors should receive credit for the full amount so paid, and that the income and rent should be awarded to Florence, upon the balance of the estate, and that it was the duty of the . executors to have protected themselves against any over payment to the general legatees by security.

Ordered accordingly.