In re Spencer's Estate

The testatrix died on the 29th day of December, 1892, leaving a will bearing date on the 21st day of the same month, which was admitted to probate on the 6th day of February, 1893, and letters testamentary thereupon issued to James L. West, executor. By the terms of the will, testatrix directed the payment of her debts, funeral charges, and expenses of administration, and bequeathed the sum of $200 to one sister, and $100 to each of two other sisters. Then follows a bequest of $200 to Nellie O’Dell, a niece; $100 to Spencer Quackenbush, a nephew; and $50 to each of six other nieces and nephews. She then directs her executor to retain the sum of $200 out of her estate, invest the same, and expend the interest arising from such investment in keeping her cemetery lot in good condition, and further provided that:

“If it is not necessary to expend the whole amount of the interest on my lot in said cemetery, then the balance to be used in beautifying and in keeping the cemetery in good condition, as the proprietors of said cemetery may direct.”

The final disposing clause of the will is as follows:

“All the rest and residue of all my property, both real and personal, I give and bequeath to Ella Quackenbush, absolutely. Likewise, I make, constitute, and appoint James L. West, with full power to sell all my property, if necessary to, to fulfill my above bequest, executor,” etc.

It appears from the account filed that the personal estate of testatrix remaining after the payment of the debts, funeral expenses, and costs of administration is but little more than half enough to pay the general legacies, and the questions now presented for determination are: First, must the general legacies abate proportionately in consequence of the insufficiency of the personal estate to pay them in full, or can resort be had to the real estate for full satisfaction of the same? And, second, is the executor empowered by the terms of the will to sell and convey the real estate? The

In the case at bar the will was made only a few days prior to the death of the testatrix. Hence, no change occurred in the condition of her estate between the execution of the will and her death. Her estate, aside from the real estate, and a small amount of household furniture and wearing apparel, consisted of money securities. Testatrix was a woman of ordinary sagacity and business ability, and must be presumed to have comprehended the extent of her personal estate at the time of the execution of the will. The principal legatees are her sisters, while the residuary legatee is a niece; and there is nothing in the situation of the parties, as disclosed by the evidence, showing that this niece had any greater claim upon the bounty of the testatrix than her other relatives, especially her sisters. The claim that testatrix designed that the payment of the general legacies should be limited by the amount of the personal property is simply an imputation that the testatrix, desiring, in view of approaching death, to make some fair and reasonable disposition of her estate, designedly and intentionally incorporated in her will a. series of legacies which were to a great extent meaningless and valueless. It seems much more reasonable to suppose that testatrix intended that the general legacies should first be paid in full, and that whatever might remain should go to the residuary legatee. There is nothing in this conclusion inconsistent, to any extent, with the phraseology of the will; and it is sustained fully and satisfactorily Ñ>y the proof of the circumstances attending the execution of the will.