
    Matter of the Estate of Caroline Weinstein, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      May, 1904.)
    Legacy—Vesting—Power of Sale fob the Purposes of a Will Only— Devolution of Unapplied Property.
    A legacy, given absolutely by a testatrix, but made payable only at her husband’s death, does not lapse because the legatees died before the husband where the legatee survived the testatrix.
    A testatrix gave her executors a power to sell lands to pay legacies, specifically limited in amount, evidently deemed by her likely to exhaust or exceed her entire estate, and, in the event that a surplus of $1,600 should result she gave legacies to that amount payable out of the surplus only. The proceeds of a sale made under the power left a surplus in excess of all legacies. The will did not assume to pass the residue of the estate, in excess of the legacies specifically limited in amount.
    
      Held, that, to the extent of the legacies, the sale effected a conversion of the land into personalty, but that the surplus, over the legacies and as to which the testatrix died intestate, must be treated as real estate and passed to her heirs at law and not to her next of kin.
    Proceedings on an accounting.
    Kurzman & Frankenheimer, for executrix; Fleischman & Fox, for Charles Rosenbaum and other heirs.
   Thomas, S.

The legacy of $500 to Sarah Hamburger, who was living at the time of the death of the testatrix, did not lapse because of the death of the legatee in the lifetime of the husband of the testatrix, though such legacy was payable only at his death. Mitchell v. Knapp, 27 N. Y. St. Repr. 604; Loder v. Hatfield, 71 N. Y. 97. The amount of this legacy will be paid to the administrator of Sarah Hamburger.

The twenty-eighth clause of the will does not assume to pass the general residue of the estate of the testatrix, in excess of the legacies, specifically limited as to their amounts, therein set forth. The testatrix was clearly of the opinion that the legacies contained in clauses 5 to 27, inclusive, would probably exhaust her entire estate, and might not suffice to pay all of such legacies in full, and she carefully designated those of them which should abate, if any abatement was found necessary. She supposed it possible that there might be a surplus, not exceeding $1,600, and, therefore, made legacies to that amount, payable only out of such surplus, such legatees to share in such surplus ratably, if it should not suffice to pay them in full. As a matter of fact the estimate of the testatrix of the value of her estate, and at the time she made her will and up to the time of her death, was correct. Subsequent to her death the parcel of real estate, which was her principal asset, greatly rose in value, and was sold for a price which leaves a surplus, over and above all legacies, in the hands of the executors. As to such surplus the testatrix died intestate.

The surplus thus created is a part of the proceeds of land sold under a power. The power directed a sale for the payment of legacies and, to the extent of the legacies, the land was legally converted into personalty. The surplus over legacies is, however, for the purpose of determining the rights of persons claiming to take under the laws governing intestate estates, to be treated as real property, and passes to the heirs-at-law of the testatrix and not to her next of kin. Parker v. Linden, 113 N. Y. 28. If counsel do not agree as to the proportions in which division of the surplus is to be made, they may submit memoranda of their contentions on the settlement of the decree. Tax costs and settle decree on notice.

Decreed accordingly.  