106 N.Y.S. 1080 | N.Y. Sup. Ct. | 1907
The testator, Louis Becker, bequeathed his “ household furniture, jewelry, books, ornaments and wearing apparel ” to his children; and to his daughters, Adolphine and Johanna, his confectionery business at 605 Tenth avenue, in the city of Hew York, “ together with the entire stock, fixtures and appurtenances of every description thereunto belonging,” in equal shares. Next, he bequeathed $500 to his sister Adolphine Becker, and $100 to the trustees of the Bethlehem Orphan Asylum at College Point, Long Island ; and, lastly, he bequeathed and devised “ all the rest, residue and remainder ” of his estate, real and personal,, to his executors in trust, with power to sell the real estate, to collect and receive the rents and income thereof, and to apply the net amount of such income to the use of his minor children, the corpus of the trust estate to be divided among them when the youngest child should arrive at the age of twenty-one years. At his death it transpired that aside from his confectionery business his personal estate was insufficient to pay his funeral expenses and debts, about $800 of the latter having been very recently contracted by him for the purposes of replenishing the stock of his business; and the question has arisen whether the real estate devised by him in" trust for his children is chargeable with the payment of the two general legacies given to his sister and the Bethlehem Orphan Asylum.
The personal estate, after deducting specific legacies therefrom, is the primary fund for the payment óf debts and general legacies. Hoes v. Van Hosen, 1 N. Y. 120. Specific legacies abate in proportion as it may be necessary to resort
The resignation of the plaintiff Diederich Gr. Hilderbrand, as executor and trustee, will be accepted; and the proposed decision and interlocutory judgment providing for an accounting by the plaintiffs preliminary.to the judicial settlement of their account as such executors and trustees may be submitted upon notice of settlement.