
    Clementine Schnorr et al., v. Hermina Schroder.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 18, 1887.)
    
    Will—Constbuction of—Legacies—When not a chabge on heal estate.
    The testator, in 1888, published and declared his last will and testament by which he directed his executors to pay debts and funeral expenses _ He then made some specific bequests to one C. Rottier, gave three legacies of $1,000 each and then gave all" the rest residue and remainder of his estate both real and personal to his daughter. At the time of making the_ will the testator had more than $80,000 in personal property; some of this he subsequently invested in real estate, and at his death, in 1880, he had not enough personal property to pay his debts and funeral expenses. Held, that the legacies are not a charge upon the real estate of the testator. Cases distinguished.
    Submission upon an agreed case.
    
      Jesse K. Furlong, for pl’ff; Richard M. Bruno, for def’ts.
   Van Brunt, P. J.

The testator on the 17th day of March, 1883, made, published and declared his last will and testament by which he directed his executors to pay debts and funeral expenses. He then made some specific bequests to one Clementine Jennie itosse Rottier.

He then gave three legacies of $1,000 to three persons, two of them nephews, and then gives, devises and bequeaths all the rest, residue and remainder of his estate both real and personal to his daughter.

At the time of making this will the testator had over $30,000 in personal property, some of this he subsequently invested in real estate, and at the time of his death in March, 1885, he had not sufficient personal property to pay his debts and funeral expenses, and the question now submitted to the court is as to whether the legacies above mentioned are to be deemed a charge upon the real estate of the testator.

This question is a matter of intention, and such intention may be gathered from the will itself and also from the circumstances surrounding the testator at the time of the making of the will.

Thus it has been held that where it appeared that the testator must have known at the time of making his will that he had no personal estate, and that he had real estate, and legacies are given, it will be presumed that the testator did not intend to go through an idle ceremony in making the bequests, but that he intended them to be paid, and that as he knew that they could only be paid out of his real estate, he must have intended them to be a charge upon his real estate. McCorn v. McCorn, 100 N. Y., 511.

But where at time of making the will the testator has ample personal estate to satisfy all the legacies mentioned in the will, no intention can be inferred of making the payment of legacies a charge upon his real estate, unless the terms of the will itself require this interpretation. The mere existence of a general residuary clause is not sufficient to raise the presumption of an intent to charge real estate with the payment of legacies. There must be something more or the intention will not be rendered sufficiently apparent to make the legacies a charge upon the real estate thus devised.

The case of Hoyt v. Hoyt (85 N. Y., 142), cited by plaintiff’s counsel does not bear out the view which is sought to be derived from it.

It is true that in that case at the time the testator made his will, that he had sufficient personal property to pay the legacies mentioned in his will, but the court base their decision upon the fact that after a change in his circumstances, and when he had no longer sufficient personal property to pay the legacies named in the will, the testator republished his will and in a codicil inserted a power of sale of his real estate, in view as the court says of the lack of personal property to pay these legacies.

The decision in the case of Scott v. Stebbins (91 N. Y., 605), turned upon the fact that the legacy mentioned in the will was to .a son, and was given. him to make him equal to another son to whom he had previously made advances, and they could not be made equal except by the payment or the legacies in full.

In the case at bar there being no indication of any intention of the, testator to charge his real estate with the payment of legacies, and the rule in England that if legacies are given generally, and the residue of the real and personal estate is afterward given in one mass, the legacies are a charge on the residuary real as well as personal estate, not being recognized by the courts of this state, the legacies in question did not become a charge upon the real estate of the testator.

Judgment accordingly.

Daniels and Bartlett, JJ., concur.  