137 N.Y.S. 306 | N.Y. App. Div. | 1912
The question is whether a legacy to plaintiff, not. of testator’s blood, is a charge upon the real estate. The testator, a farmer, in December, 1887, made his will, whereby he directed his executors to pay his debts primarily from the proceeds of sale of the personal property on his farm and money collected on his life insurance, and also therefrom to pay the mortgage on his farm; or, if insufficient, to use therefor the proceeds of sale of bank stock; or, if such property proved insufficient, to sell such part of the farm therefor as would discharge the balance of the mortgage, with power to allow such balance to remain after appropriating the personalty as directed. Subject to the payment of debts, he gave his wife all household furniture, utensils, books, pictures, silverware and wearing- apparel, which amounted to $1,200, and stock, farm produce, or farming implements or machines, to the value of $1,000. Then he gave the residue of the property, real and personal, to his widow for life, and at her death directed his executors to pay plaintiff $1,000, and the remainder he gave to an adopted-daughter who died before the widow, whereby the defendant Reed took the remainder under the 6th clause of the will.' After payment of the debts, mortgage and expenses of administration and gifts to the widow, there was $46 left, which was applied on plaintiff’s legacy. The testator’s intention governs, and the scheme of the will and what testator said in it to effect his plan must be studied. The testator made the gifts to his wife first selectable from the property on his farm and in his home, but even they were subject to the payment of debts. The - testator foresaw that such farm property and his life insurance might not meet his debts and mortgage, and so he pointed out the next source of funds,, viz., his bank stock, and he conceived that even then there might be a deficiency, and he gave a limited power of. sale to sell the farm in whole or part to make up what was needed. After the payment of debts and the mortgage, the gifts to his wife were to be next. But it occurred to him that all the personalty might be con
The judgment should be affirmed, with costs.
Hirsohberg, Burr, Woodward and Rich, JJ., concurred.
Judgment affirmed, with costs.