125 N.Y.S. 101 | N.Y. App. Div. | 1910
This is a submitted controversy in which this court is asked to determine whether the general legacies set forth in the last will and testament of Dominick Bodkin, M. D., deceased, were by said instrument charged upon the real estate devised by the residuary clause thereof. It may first be noted that the agreed statement of facts submitted for the purpose of our decision is somewhat meagre. Many statements of facts appear in the briefs of the respective counsel which do not appear in the agreed statement to which we are confined necessarily in the determination of the legal question presented.
The decedent was a physician who never married. On June 1, 1900, he made his will which provides for a number of'general legacies, certain specific devises of real property and a residuary clause. His will opens with a clause as follows: “After my just debts and funeral expenses are paid and discharged I dispose of my property
The general legacies amounted to the sum of $31,000. The agreed statement of facts does not contain any information as to the extent of the testator’s ownership of personal property at the time the will was made, whether it was less, greater than or equal to the amount of the general legacies. Ror does it tell us the amount of the personal property at the time of the decedent’s death. All the information it gives upon this point is1 as follows : “That after the death of the said Dominick G. Bodkin it was ascertained by his executors that his personal estate applicable to the payment of the general legacies (italics ours), provided for in his last will and testament, did not amount to more than the sum of about $20,000, and that the executors were unable to pay said general legacies in full, and that there remains due and unpaid upon the remainder of the said several legacies * * * as follows,” etc.
The testator died in January, 1902, at the age of sixty-eight, about eighteen months after the will was made. As to his personal and financial affairs, it is stipulated as follows: “ .For many years he had been practicing as a physician in the-Borough of Brooklyn, and had an extensive and lucrative practice. About eighteen months previous to his death he was taken ill and during the said period of his illness he was unable to pursue his profession and that his income therefrom during that time practically ceased.”
The primary rule is that where the personal 'estate is insufficient to pay the general legacies they must abate proportionately, and that no recourse may be had to the real estate to make up the deficiency unless the will indicates an intention upon the part of the testator that the real estate should be so charged. This rule is so familiar as to require no citation of any of the numerous decisions in which it has been stated. As the question is one of testamentary intention, the courts have been' diligent in searching out the testator’s
In other words, there is nothing in the surrounding circumstances to indicate that when the will was made the testator had not personal property sufficient to pay the legacies, or had any reasonable anticipation of the likelihood of a deficiency in personal assets. Hence there is no room here for any inference of an intention to charge the legacies upon the real property. The mere fact that this property is devised in a residuary clause, taken by itself, is not of sufficient importance to support an inference of an intended charge. The burden of showing an intent to charge is upon those who assert'it. (Brill v. Wright, 112 N. Y. 129.)
It follows that there must be a judgment for the nephews and nieces who take under the residuary clause, determining that the general legacies are not charged upon the lands devised under the residuary clause.
Woodward, Thomas and Rich, JJ., concurred; Jenks, J., dissented.
Judgment for defendants, with costs, in accordance with the ' terms of the submission.