160 Misc. 833 | N.Y. Sup. Ct. | 1936
This is an action to foreclose three mortgages upon which there is now due a total sum of $6,046.89. No defense is interposed against the foreclosure of the two mortgages set up in the first and second causes of action. The third mortgage was dated August 20, 1932, and given to secure a loan of $1,950 by Leon J. Weeks and Albert A. Weeks, residuary distributees
“ Assets:
Real estate appraised........................ $13,450 00
Cash....................................... 1,169 08
Personal effects.............................. 329 00
$14,948 08
“ Liabilities:
Debts...................................... $236 70
Funeral and administration................... 1,172 00
Executor’s fees.............................. 423 70 ”
No part of the legacy provided in the will for Harold M. Smith has ever been paid. The personal estate was barely more than enough to pay the funeral and administration expense plus executor’s fees. The answer interposed by Harold M. Smith, an infant, by Francis Preston, his guardian ad litem, presents the question as to whether the legacy to said infant is a charge and lien on said real estate having priority to the Ken of plaintiff’s third mortgage. At the time of the death of Lucile Weeks, January 24, 1928, there were two mortgages totaKng the principal sum of $2,850 on the real property in question. The will directed the executor to sell this real estate for not less than $30,000. The financial status of the maker of the will was the same at her death, ten days later.
A comparison of the value of the personalty with that of the realty at the date of the making of the will, shows a clear intent of the testatrix to make the legacy to the infant defendant a charge on her real property.
The court is not unaware of the rule of law in this State that the intention to make specific legacies a charge upon real property must appear plainly, distinctly and unequivocally. (Scholle v. Scholle, 113 N. Y. 261.) The testatrix’s intention squares with the apphcable rule.
This loan was made by the plaintiff with the knowledge that the estate had not been settled and the application for the loan stated that its purpose was to “ settle estate.” It is clear that the intent was to make the legacy of the infant defendant, Smith, a charge on the real estate and plaintiff’s third mortgage is a secondary and subsequent lien to the lien of Harold M. Smith, for $1,000, with interest from February 1, 1929.
Plaintiff is entitled to proceed with the foreclosure of its first and second mortgages and any proceeds available in said foreclosure proceeding in excess of the amounts due plaintiff under and by virtue of its mortgages set up in the first and second causes of action, plus costs and expenses of foreclosure, are charged with a prior lien in favor of the infant defendant, Smith, for the unpaid amount of the said legacy to him, with interest thereon as provided by law.
Present appropriate findings and judgment in accordance with this opinion.