In re Bedford — 124 N.Y.S. 619

Majority

p. 619

(67 Misc. Rep. 38.)

In re BEDFORD.

(Surrogate’s Court, Kings County.

March, 1910.)

Headnote

Wills (§ 755^[1] )—Construction—Demonstrative Legacy.

Testatrix gave to her infant children a house and lot, with a direction that from the money in bank mortgages against the house should be paid as soon after her death as possible. Held a demonstrative legacy of such money to the extent required to pay the mortgages, and where the fund was insufficient for the purpose, and there were no personal assets, after payment of the expenses of administration, the balance of the fund must be applied to the mortgages.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 1947; Dec. Dig. § 755.*]

In the matter of the settlement of the account of William Bedford, executor.

Decree rendered.

Coombs & Wilson, for executors.

C. Walter Randall, special guardian, for Beaumont infants.

William J. Bolger, special guardian, for Charles M. Beaumont and Charles Altenbrand.

The will requiring construction was in part as follows:

“Second. I give and devise to my two youngest children, Joseph Beaumont and Benjamin Arthur Beaumont, my house and lot, No. 372 Graham avenue, Brooklyn, Kings county, to them, their heirs and assigns, forever, and I hereby appoint my said husband to be their guardian during their infancy,

p. 620

and from the money which I have in bank to pay off the mortgages against my said house and lot as soon after my death as possible, and to pay all taxes and assessments which may hereafter be levied against the same and in consideration thereof and the guardianship of my said children Joseph and Benjamin, that he shall have the use of said house, rent free, during his lifetime.”

This provision was followed by three general legacies of money and a gift of the residue to the husband. This will must be construed as containing a direction that the moneys in bank left by the testatrix at death should be applied to the extinction of the mortgages upon the devised lands. This constituted a demonstrative legacy to the persons named as devisees of such portion of the moneys in bank as might be required to satisfy the mortgages, or of the whole of such moneys, if they were less than the amount of the mortgages.

There being no personal estate other than the moneys thus demonstrated as the source from which the specific legacy was made payable, the expenses of administration were necessarily payable from the demonstrated fund, and the balance thereof should be applied to the purpose to which it was devoted by the testatrix. The lands having been sold, and the mortgages having been discharged from the proceeds of sale, this balance should now be paid to the guardians of the legatees.

Decree should be submitted accordingly.