1 Barb. Ch. 379 | New York Court of Chancery | 1846
If the vice chancellor was right in supposing that the releases were invalid, and that the legacies were not primarily chargeable upon the interest of the testator in that part of the personal estate which was not disposed of, by the will, after the termination of the widow’s life estate therein, the decree is wrong as to the portions of the unbequeathed interest to which the complainants are entitled. Where a reversionary interest in personal property is not disposed of by the will of a testator, it does not necessarily belong to those who may happen to be his next of kin at the termination of the particular estate or interest in such property, which is bequeathed by him. But, as an interest in property undisposed of by the will, it belongs to the widow and next of kin of the decedent, who were entitled to the distributive shares in such unbequeathed interest at the death of the testator. And if any of them have died without having disposed of their interests therein, their shares go to their personal representatives, as a part of the personal estate of such decedents. Here, if there was an interest in the personal property undisposed of, one third of that interest belonged to the widow of the testator; and her executors or administrators alone can call upon the defendant for the payment thereof
The release executed by Mrs. Hoes, before her marriage, appears on its face to be valid and effectual to extinguish all claim which she then had, or might thereafter have, against, the executors, or against the defendant, for or on account of the personal estate of her deceased father. And her interest in the personal estate after the-death of the xvidoxv, if she had any such interest, xvas absolutely vested in her immediately upon the death of her father; although it could not vest in possession during the life and xvidowhood of her mother. It was therefore an interest which she could release at any time; and was extinguished by the release of December, 1818, if that release xvas not obtained
I infer from the expression in the release of Hager, reciting that it was given in consideration of §700 theretofore paid him by the defendant, and from the allegation in the bill that the legacy was paid a long time before the death of the widow, that the release executed by Hager was not in fact given at the time the legacy was paid; but that it was subsequently executed. If so, it would corroborate the defendant’s allegation, in the answer, that previous to the payment of the legacy Hager had agreed to receive the same, and to execute a full and absolute
I agree with the present Lord Chancellor of Ireland, that the soundest and most sensible rule of construction, both as to debts and legacies, would have been, that if there are express words of dedication of a portion of the real estate for the payment of debts or legacies, and the testator has disposed of all his personal estate specifically, the fund which the testator has himself provided for the purpose should be deemed the primary fund. The current of the authorities, however, is certainly the other way so far as relates to the payment of debts, at least. (Fereges v Robertson, Bunb. Rep. 301. Waller v. Jackson, Idem, 303, n Aldridge v. Lord Wallscourt, 1 Ball Beatty, 312. Ancas ter v. Mayer, 1 Bro. C. C. 460. Stephenson v. Heathcote 1 Eden's Rep. 38. Howe v. Dartmouth, 7 Ves. Rep. 149 Watson v. Birchwood, 9 Idem, 447. Bootle v. Blundell, 1 Mer. Rep. 193.) It is also the general rule that the personal estate is the primary fund for the payment of legacies, although such legacies are charged upon real estate; whether such real estate be devised with a direction to the devisee to pay the legacies, or is charged with such legacies, or given to trustees for that purpose. (See 1 Roper on Leg. 163, and cases there referred to.) But in reference to legacies, an absolute disposition
It is not necessary to express an opinion upon the question, whether the life interest of the widow in the part of the personal estate not disposed of by the will, in the present case, was in fact exonerated from the payment of the four legacies, to the testator’s son Lambert and to the three daughters. But upon an ex-
The decree of the vice chancellor must therefore be reversed; and .the bill of the complainants must be dismissed, with costs.