1 Bradf. 473 | N.Y. Sur. Ct. | 1851
The testator in the first clause of his will provided as follows : “ It is my will, that all my just debts shall be paid as soon after my decease as may be consistent with the interests of my estate, provided, however, that my two lots in the city of Hew-York, &c., which are under mortgage, shall not be sold unless it be absolutely necessary; as the mortgage debts are sufficiently secured, and it will be for the advantage of my estate and those interested therein, that these incumbrances should be gradually liquidated by the rents accruing from the property.” The will then gave legacies of one hundred dollars each to the half-brother, uncle and aunt of the testator,-and the residue was disposed of in the seventh clause,
There being a deficiency of personal estate to pay the legacies, it is urged that they constitute a charge upon the proceeds of the sale of the real estate, a part of which has been sold by the executors under the power contained in the will. This question is to be determined from the contents of the will, parol evidence of intention being inadmissible. (Lupton vs. Lupton, 2 J. C. R., 623.) There are few points which have been more agitated from an early period, than that of charging the real estate with debts and legacies. Independent of statutory provisions, I think the present will contains enough to charge the real estate by implication, at Common Law, with the payment of the testator’s debts. The debts are directed to be paid in the first place, as soon after the testator’s death as may be convenient, provided that his real estate be not sold, unless it shall become absolutely necessary; and then, subsequently, the rest and residue of the estate, real and personal, is. devised and bequeathed, after the payment of debts, and the executory are clothed with a power of sale. (Harris vs. Ingledew, 3 P. W., 91; Kentish vs. Kentish, 3 B. C. R., 257, note; Shallcross vs. Finden, 3 Vesey, 739; Williams vs. Chitty, 3 Vesey, 545; Clifford vs. Lewis, 6 Madd., 33; Graves vs. Graves, 8 Simon, 55; 2 Russ. & My., 581; Ball vs. Harris, 8 Simon, 485; 1 Dru. & W, 430; 1 You. & Col., N. C., 290; 2 My. & K, 607.) As the personal estate was the primary fund for the payment of the debts and legacies, and the testator appears to have contemplated and charged the payment of his debts out of and upon his real estate, it renders the ground for a simi