17 N.Y.S. 712 | N.Y. Sup. Ct. | 1892
The testatrix, by her will, in 1872 gave the sum of $1,800, held by her in her own and separate right prior to the death of her husband, to her four- brothers, equally. By this will the residue of the property of testatrix was given to her deceased husband’s children. The words of this will did not charge the legacy on the land owned by testatrix. Brill v. Wright, 112 N. Y. 129, 19 N. E. Rep. 628; McCorn v. McCorn, 100 N. Y. 511, 3 N. E. Rep. 480. At the time of the execution of the will the testatrix had deposits in savings banks, and the personal estate would presumably have then been sufficient to pay the legacies out of the personal property. Her deposits then were much larger than the legacy. By the codicil, made in 1884, the legacy of $1,800 is cut down to $300 each for her four brothers. The $600 deducted from her brothers’ legacies was given to the residuary legatees, as specified in the will. A power of sale was given the executor to sell the land, and an executor was changed; otherwise the will was ratified and confirmed; The blending of the real and personal property in the residuary clause does not produce a charge upon the realty for the payment of legacies whenever the personal estate is insufficient. Briggs v. Carroll, 117 N. Y. 288, 22 N. E. Rep. 1054. The judgment should therefore be affirmed, with costs. All concur.