140 Misc. 597 | N.Y. Sur. Ct. | 1931
The legacy in the “ second ” item of the will for defraying the educational expenses of Emanuel Rothman is a general legacy for a specific purpose and is, therefore, classifiable as a mere general legacy. (Wetmore v. St. Luke’s Hospital, 56 Hun, 313, 321; Matter of Hinman, 32 Misc. 536, 538; Matter of Werrick, 135 id. 876, 877; Matter of Smallman, 138 id. 889, 904; Crawford v. McCarthy, 159 N. Y. 514, 518, 519.) All of testator’s realty is specifically devised, and it is elementary that the subject-matter of specific bequests or devises will not abate in favor of general legatees but only for payment of debts or funeral and
While, therefore, it is necessary and proper on the facts shown to exist, that the specifically devised real estate should be mortgaged or sold for the payment of the debts and funeral and administration expenses, no part of such proceeds may be used for the payment of Emanuel's legacy which must abate in its entirety.
Proceed accordingly.