157 N.Y.S. 470 | N.Y. Sur. Ct. | 1915
The special guardian’s objections are sustained as follows: The legacies contained in the fourth and fifth clauses of the will are specific legacies. (Estate of Beckett, 15 N. Y. St. Repr. 716.) In Roper & White on Legacies (Vol. 1, p. 199) it is said: “ Following then the same principle;, viz., the intention of testators, if a testator direct his' freehold or leasehold estates to be sold, and dispose of the proceeds in such a form as to evince an intention to bequeath them specifically, the testamentary dispositions will be specific, the money is sufficiently identified and severed from his other property; and since he has sufficiently marked his intent to distribute the identical proceeds, the bequests are accompanied with all the requisites of specific legacies.
“ An instance of this kind occurred in Page v. Leapingwell (18 Ves. 463) ; see also Newbold v. Roadnight (1 Rus. & M. 677). In that case A. devised to B. real estates in trust to sell, but not for a less sum than £10,000; and he directed B., out of the monies arising from the sale, in the first place, to lay out
In Williams on Executors (Vol. 1, p. 921) it is said: “ Again, where the bequest Was ‘ to my granddaughter the sum of £40, being part of a debt due to me for rent from A, she allowing what charges shall be expended in getting the same:
The legacy in the sixth clause is a general legacy. (Tifft v. Porter, 8 N. Y. 516; Matter of Werle, 91 Misc. Rep. 402.) The assets are applicable to the payment of debts and administration expenses in the following order: First, the unbequeathed personalty as to which the testator died intestate; second, the general legacy contained in the sixth clause of the will, and last of all the specific legacies. The expenditure for the burial plot will be approved and the special guardian’s objection to that item overruled. Let a decree be submitted on notice adjusting the account accordingly and tax costs.
Decreed accordingly.