37 A.D. 73 | N.Y. App. Div. | 1899
The legacies in form given by the 5th clause of the will amount to $44,000. The fund is only $40,000. One of the legacies, that of $5,000 to the supervisor of the town of Sherburne, is invalid. The fund then being sufficient to pay the valid legacies, is the respondent,,
The case of Page v. Leapingwell (18 Ves. 463) is relied on by the appellant. In that case, where several legacies to the amount of .£10,000, were given, payable from a fund to be produced from the ■sale of certain property and expected to be at least £10,000, but fumed out to be less than £7,000, and two of the legacies were void under a certain statute, it was held that the legacies were specific and must abate proportionately, and that the void legacies fell into the general residue.
In the later case of Eales v. Drake (L. R. [1 Ch. Div.] -217), a testator, having power to appoint by will £7,000, made a will ■appointing sums to the amount of £10,000. One of the appointees in the amount of £4,000 died in the testator’s lifetime. It was held that the other appointees and not the persons who would take in default of appointment were entitled to the benefit of the lapse. It was said that the death of the appointee augmented the fund exactly in the same way as if the testator had given pecuniary legacies of greater amount than his whole personal estate and then one of the legatees had died.
In Raikes v. Raikes (L. R. [45 Ch. Div.] 66) the testatrix bequeathed her diamonds upon trust for sale and thereout to pay two legacies of £600 and £700. The will contained a residuary bequest, but did not otherwise deal with the surplus, if any, of the proceeds of sale. The diamonds only realized £900. The legacy of £700 was void. It was held that the £600 legacy was not liable to abate in favor of the residuary legatee, but was in effect a first charge on the proceeds of sale which must be satisfied before the residuary legatee could take anything. The Page case was distinguished, it being said that, in that case, there was in substance a division of the sum of £10,000 in specific or aliquot portions among named legatees who were to take as tenants in common in the pro
The ease of Wetmore v. St. Luke's Hospital (56 Hun, 313) is-relied on by the respondent. In that case the testatrix, after making certain specific devises and bequests, directed by the 7th. clause of her will that the rest of her estate be converted into cash and certain legacies be paid therefrom. By the 8th clause she directed that after the payment of the legacies and provisions for annuities in the 7th clause, the executor should pay out of the¡ proceeds certain other legacies. There was a residuary clause. Two of the legacies in the 7th clause were ineffectual. The trial court decided that those legacies went to the residuary legatees,, although the balance of the estate was insufficient to pay the legacies in the 8th clause. This was held to be error, it being said, that the will was to be construed as though the ineffectual legacies, were not in the will at all. The legacies in the 8 th clause were, treated as general legacies, and in that respect, the appellant here-claims, the case is different from the present one.
It is to be observed that the fund as described in the will is-“forty thousand dollars and accrued interest and income.” The testator, therefore, acted upon the idea that the fund was or might be more than $40,000. It was also a fund separate from the balance of the estate, and might continue for many years and after all or most of the other provisions were executed. There was not, in terms at least, any division by the testator of the fund into specific or aliquot parts. There was no specific disposition of any particular part of the fund. There were designations of certain amounts to certain parties. One designation, however, was of such a characteithat in law it was no designation at all, and, if not, then the other designations did not exceed the amount in fact of the fund. In this, view the Hales case would be somewhat analogous.
It is quite apparent that, as to this fund, the testator had particular objects, of his bounty, and, therefore, a construction would not ordinarily be favored that would divert any part of the fund to other objects until the legacies were fully paid. The legacies are general so far as this fund is concerned, and in that view might be deemed a charge upon the fund, and if so, a residuary legatee would take
The question seems to be whether the gift is a charge upon the fund, or a disposition of an aliquot part of it (Matter of Jeaffreson’s Trusts, L. R. [2 Eq. Cas.] 282). It should, I think, under the circumstances presented here, be deemed a charge and entitled to full payment as against the residuary legatee.
It follows that the appeal is not well taken.
All concurred.
Decree so far as appealed from affirmed, with costs.
