1 Redf. 374 | N.Y. Sur. Ct. | 1861
The Surrogate. — The will of Dexter Haven provides, 1st, for the payment of funeral expenses and debts “ out of my estate2d, an annuity to Nathaniel Haven, his father, of • $35, “ to be paid annually after my decease, during his natural life 3d, he gives “ all my real and personal estate, • goods, and chattels, of whatsoever nature or kind, to my wife, Mary Haven, to be used and enjoyed by her during her natural life.” At her decease the testator makes certain specific bequests, and then bequeaths all the remainder of
There is a debt existing against the estate in the shape of a life annuity to Nathaniel Haven, senior; and the most important question to be decided is, how shall this annuity and the annuity to Usher be paid — whether out of the annual income, or out of the principal of the estate; the widow claiming that both shall be paid out of the principal.
There is no direction in the will how these shall be paid. The deceased left personal property about $8,000, and real estate in value about $4,000. His debts, aside from the annuity, are less than $1,000. He left no descendants, and the Nathaniel Haven, senior, spoken of, is his father, and Mr. Usher is the brother of his wife.
The intention of the testator is to be gathered from the will and the surrounding circumstances. (2 Will, on Ex., 972.) The will and codicil are to be construed together, as parts of the same instrument. (Westcott v. Cady, 5 Johns. Ch., 334; Willett v. Sandford, 1 Ves., Sen., 186.) The testator directs that his debts and funeral expenses shall be first paid, then the annuity to Nathaniel Haven, — and the annuity afterwards given to Usher, is evidently in place of this ; and then thirdly, that is, after the debts and annuities are paid, he gives all his estate to his widow for life. It seems to me that the design of the testator was to first provide for the debts and annuity, and what was left should be held by the widow for life; that he so meant when he said “ all his real and personal estate should go to the widow,” &e., and it would only more fully express the idea to say, the balance of his real and personal estate. (See Will, on Ex., 1224.) If this construction is right, then the debts, expenses, and annuity are to be provided for out of the principal, before the