Vanderhoof v. Lane — 44 N.Y. St. Rep. 487

Majority

p. 487

William H. Vanderhoof, Ex’r, Resp’t, v. William B. Lane et al., App’lts.

(Supreme Court, General Term, Second, Department,

Filed February 8, 1892.)

Headnote

Legacy—Charge on real estate.

By the will of plaintiff’s testatrix she gave the sum of $1,800 to her four brothers share and share alike, and the residue of her estate to her husband’s children. At the time of executing the will she had sufficient personal property to pay the legacy. By a codicil subsequently executed she cut down the legacy so as to give $300 to each of her brothers and the balance to the residuary legatees. Held, that the legacies to the brothers were not charged on the real estate by the blending of real and personal property in the residuary clause.

Appeal from judgment of special term construing the will and codicil of Emeline B. Vanderhoof, deceased.

Action for construction of a will and codicil for the purpose of determining whether certain legacies given to appellants should be paid out of the proceeds of a sale of real estate, the personalty being insufficient.

William J. Gaynor, for app’lts; Morris & WMtehouse, for resp’t

The testatrix by her wiK 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 ; 20 St. Rep., 305 ; McCorn v. McCorn, 100 N. Y., 511 .

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 ; 27 St. Rep., 468 .

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur. •