Davidson v. Rightmyer

This is an action in equity for the construction of the last will and testament of Louisa Rightmyer, deceased. A legacy of $500 is bequeathed to the plaintiff, and is directed to be paid out of the testatrix’s estate. The plaintiff is the brother of the testatrix. The will does not, in terms, make the bequest a charge upon the real estate. The testatrix’s husband, Dennison Rightmyer, is made the executor of said will, and is the residuary legatee and the devisee of said real estate. This action was commenced for the purpose of making the bequest to the plaintiff a charge and a lien upon said real estate, which consists of a certain hotel and the outbuildings, situate at Munnsville in this county. The defendant Rightmyer, together with his wife, had kept and run said hotel for many years. The title stood in the name of the wife, she having taken the deed thereof in fee simple on the 20th day of April, 1886. Her last will and testament bears date May 1, 1886. The testatrix died in August, 1898, leaving the defendant Rightmyer her surviving. She left no children. The consideration in said deed is stated at $3,000. Upon receiving said conveyance, the testatrix executed to the Oneida Savings Bank, of Oneida, N. Y., a bond and a mortgage in the sum of $2,000. This mortgage remains unpaid, except the interest thereon. Under ordinary circumstances, before a legacy can be made a charge upon real estate, it must be so expressed in the will itself, or its peculiar form must be of such a character as to show that it was the intention of the testator to make the legacy a charge. The circumstances, the situation of the parties, the condition of the estate, the relations of the parties to each other, and many other facts, may be shown upon the trial of an action of this character, for the purpose of disclosing the intention of the testator, at the time the will was executed, to make the

When general legacies are given in a will, followed by a residuary clause, in the usual form, and nothing more, the language of the will alone, unaided by extrinsic evidence, is insufficient to charge the legacies upon the land included in the residuary clause; and the burden of establishing that the legacy is made a charge rests upon the legatee, where the language of the will does not affirmatively show such was the intention of the testator. Brill v. Wright, 112 N. Y. 129 , 19 N. E. 628 , 8 Am. St. Rep. 717 . A residuary clause, in the form of the bequest in the case at bar, is not sufficient to charge a legacy upon real estate; nor does the provision for its payment merely raise such presumption. In re McKay’s Estate, 33 Misc. Rep. 520 , 68 N. Y. Supp. 925 ; Wiltsie v. Shaw, 100 N. Y. 191 , 3 N. E. 331 ; Morris v. Sickly, 133 N. Y. 456 , 31 N. E. 332 . This is so even where there is an express direction to sell all or any of the real estate, and execute valid deeds of conveyance for the same to the purchaser. Kinnier v. Rogers, 42 N. Y. 531 . The rule is sufficiently strong when a testator devises the real estate after the payment of debts and legacies, or where he devises the real estate after a direction that debts and legacies be first paid. This does create the lien. The legacies must be directed to be first or previously paid, or the devise declared to be made after the debts are paid. In re City of Rochester, 110 N. Y. 159 , 17 N. E. 740 .

The rule contended for by the plaintiff may be enforced where it is shown that the legacies amount to such a sum, compared with the value of the real estate, that that presumption arises from the condition and situation of the property itself, when the residuary clause is in the following form: “All the rest, residue, and remainder of my estate, real and personal, whatsoever and wheresoever.” Forster v. Civill, 20 Hun, 282 ; Kalbfleisch v. Kalbfleisch, 67 N. Y. 354 . Like inference may be drawn where there is a deficiency of personal property existing at the time when the will is made, and it is so great and obvious as to preclude any possible inference that the testator did not realize it, or that he may have expected or intended before his death to remedy the difficulty; in other words, the testator must have realized the situation, and have intended to make the legacy a charge. Briggs v. Carroll, 117 N. Y. 288 , 22 N.

Certain letters were received in evidence, from which the plaintiff seeks to draw the inference that the real estate was to be charged with the payment of this legacy. Among other things, one of the letters suggests that the defendant is to have the benefit of a large life insurance, inferentially coming from a policy- on the wife’s life, but there is no evidence that any such policy was ever taken or ever matured, and therefore little importance can be attached to that declaration. It may be possible that a life insurance was intended at some future time to have been placed upon the life of the testatrix, but the evidence is silent as to the fact. - This letter is dated on the 4th day of December, 1885, five months before the will in question was made, and the alleged fact contradicts the provisions of the will.

By the evidence of Mrs. Davidson, the plaintiff sought to show, from the declarations of the testatrix, that she had no personal property or estate; therefore, that she intended to charge the payment of thi§ legacy upon her real estate. This conversation took place in June, 1887, at Little Falls, N. Y., where the testatrix was visiting the witness and the plaintiff. Witnesses were called in behalf of the defendant, and from that evidence it is clearly shown that, at the time said will was made, and for several years thereafter, the testatrix was the owner of more than $1,000 worth of personal property, besides the hotel furniture. This fact, being established by the evidence of witnesses, who gave the character and description of the property, is, of itself, sufficient to defeat the verity of the declarations alleged to have been made; since it can as well be inferred that the testatrix did not care to fully disclose her financial condition to the witness, or that she did not want to loan money to the plaintiff .or to his wife.