15 Barb. 503 | N.Y. Sup. Ct. | 1852
The only question presented in this case is, whether the three legacies of $150 each, to Joseph, Jane and Mary, are to be deemed a charge upon the real estate of the testator. The general rule upon this subject is, that the personal estate is the primary fund for the payment of debts and legacies, and therefore if the testator gives a legacy without specifying who shall pay it, or out of what fund it shall be paid, the legal presumption is that he intended it should be paid out of his personal estate only, and if that is not suEcient, the legacy fails. (Harris v. Fly, 7 Paige, 421.)
The question whether the legacies'are a charge upon the real estate in this case, must be determined by reference to the will itself. The general rule is that real estate is not to be charged with the payment of legacies, unless the intention of the testator is expressly declared in the will, or clearly to be inferred from the language and disposition of the will. (Lupton v. Lupton, 2 John. Ch. 614.) Upon the question whether legacies are an implied charge upon the real estate, dependent in all cases upon
Mason, Justice.]
I direct therefore that this judgment be entered in the form submitted in the record, declaring these legacies a charge upon the real as well as personal estate.