174 Misc. 438 | N.Y. Sur. Ct. | 1940
The testator died on May 28, 1939, at the age of seventy-nine years. His nearest relatives were nephews, nieces, grandnephews and grandnieces. His will, executed on July 23, 1936, has been admitted to probate. At the time of its making, testator owned a single parcel of realty, occupied by him as a residence, of the value of $6,000, and personal property amount
After providing for the payment of his debts and funeral expenses, testator gave a legacy of $800 in trust to Mt. Olivet Cemetery for the care of his grave. This was followed by a specific devise of his dwelling house, known as No. 84-04 Fifty-fourth avenue, Him hurst., to his beloved niece, Mary Reichert, together with a gift of the contents. In the next and fourth paragraph, he gave cash legacies of $1,500 each to a nephew and two nieces as well as legacies of $500 each to two other nephews. Legacies totaling $13,700 were then given to his friends, twenty-nine in number. A grandniece was favored with a legacy of $300. In disposing of his estate he did not overlook his church and two charitable corporations to whom he gave the sum of $500 each. In the fifth paragraph he left his residuary estate to his beloved niece, Mary Reichert, the specific devisee of his real estate. His personal estate is insufficient to pay the pecuniary legacies aggregating $21,800. This fact has prompted the executors to institute this proceeding in which they ask that the legacies be adjudged to be charges upon the realty specifically devised. If the will dictates such a determination, Mary Reichert, the specific devisee and residuary legatee, would receive no benefit thereunder. On the other hand, if the legacies are held not to be charged upon the realty, it is quite possible that testator’s friends and remaining relatives will receive approximately sixty per cent of their respective legacies.
No case has been called to my attention which has charged the payment of general legacies upon realty specifically devised. A devise of a specific parcel of real estate imports an intention not to have the gift abate. (Matter of White, 125 N. Y. 544, 551; 2 Davids New York Law of Wills, § 1083, p. 1640; Matter of Hall, 144 Misc. 264.) Where a charge has been imposed, the real estate affected was that disposed of by the residuary clause. (Matter of Lilienthal, 139 Misc. 225, 229 et seq.; Carley v. Harper, 219 N. Y. 295, 303; Forster v. Civill, 20 Hun, 282; Matter of Pettit, 6 Dem. 391; Kalbfleisch v. Kalbfleisch, 67 N. Y. 354.) In 3 Williams on Executors and Administrators ([7th Am. ed.], p. 116) the rule is stated as follows: “ It may here be mentioned that where there is a specific devise or a specific legacy, the presumption is that the testator intended that the devisee or legatee should have it in its integrity: Therefore a general charge of particular legacies on the whole real and personal estate will not be allowed to operate as a charge in derogation of such specific devises or legacies.” In Spong v. Spong (3 Bligh [N. S.], 84, 105), Lord Manners said: “ a