| NY | Feb 8, 1881
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *97
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *98 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *100 We think that the testator intended to charge the payment of the legacies upon his real estate. All things in the will combine to show that intention.
After giving direction to pay his debts and funeral expenses, he gives a series of legacies, which are not unnatural in the objects of them. He then authorizes his executors, after paying debts and funeral expenses, to pay a sum certain to his wife in cash, but to pay it out of the "bequeath" to her. By that word he means that which he has given to her in another part of the will. That which he has thus given to her is the rest and residue of his real and personal estate.
If the $5,000 is to be paid to her out of that gift, does it not seem a giving twice of the same gift, and an unmeaning thing? It would clearly seem so, but for the clause that goes with it, that this sum of $5,000, is to be paid before any other of the bequests are paid off.
This deferring of the other bequests until the payment of the $5,000 has no significance unless the other bequests are to be paid from the same fund as the $5,000 to the wife. What is that fund? It is the rest and residue of the real and personal estate. That rest and residue is all that the testator gave his *102 wife; it is only from that rest and residue that the $5,000 is to be paid. As it is to be paid therefrom before the other bequests are paid off, it cannot have been meant otherwise, but that they were to be paid therefrom also, though not until after the $5,000 were paid to the wife. The power to proceed and dispose of all the real and personal, the request to proceed with due diligence in realizing the personal as well as the real estate, and the power to sell and convey his real estate, indicate the intention of the testator that the executors should come into the possession of a fund for some purpose. It could not have been for the purpose of paying the avails of the real estate over to the widow only, for if the real estate is not charged with the payment of legacies, and is left to her unincumbered thereby, she could sell and take the avails as well as the executors could sell and pay them to her. It could not have been to raise money to pay debts, etc., for there was clearly enough personal estate for that. There is but one other purpose to be found in the circumstances of the testator and that is to raise a fund for the support of his sister, to pay the widow the $5,000 for her, and to pay off the other legacies.
We have so lately discussed this general subject in varying states of facts, and differing provisions of wills, that we need not restate principles here. (See Taylor v. Dodd,
There is no prohibition as is claimed upon the sale of portions of the real estate. There is a permission to reserve until a certain price is offered. The direction to sell is somewhat peremptory. The testator thought it needful to abate its tone. He therefore gave authority, not command or direction, to reserve portions for the offer of a price named.
The widow has not lost her right of dower in the lands, nor has it been taken away. The testator has given her what he thought would be better than, or as well as, dower. If she is not of that mind, she can reject his gift and take the dower that the law gives. The testator's evident intent was that his *103 gift should be in lieu of dower, if the gift was taken by his widow.
We think that the legal questions arising in the suit were well disposed of in the courts below.
The judgment should be affirmed.
All concur.
Judgment affirmed.