
    Adam P. Schmidt and William Forster, Individually and as Executors of and Trustees under the Last Will and Testament of Martha Schluter, Deceased, Appellants, v. Katy Limmer and Others, Defendants, Impleaded with Adolph Schluter and Others, Respondents, and Charles Forster and Lizzie Schmidt, Appellants, Respondents.
    
      Legacy — when a will does not chwrge the legacies given by it upon the testatrix’s real estate — it speaks for this purpose as of the date of its execution.
    
    An intention on the part of a testatrix, who did not leave sufficient personal estate to discharge the pecuniary'legacies bequeathed by the will, to make such legacies a charge upon her real estate, cannot be inferred from the mere existence in the will of a power of sale, where it appears that at the time the will' was made the testatrix was possessed of personal property amply sufficient to discharge all the pecuniary legacies and that the insufficiency of the personal estate existing at the time of her death was due to the fact that she had, since making the will, invested a portion thereof in realty and had expended a por-, tion thereof for her personal needs.
    In determining the question the will must be considered to speak as of the time of its, execution.
    
      Appeal by the plaintiffs, Adam P. Schmidt and another, individually and as executors of and trustees under the last will and testament of Martha Schluter, deceased, and by the defendants, Charles Forster and Lizzie Schmidt, from so much of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 19th day of October, 1903, upon the decision of the court, rendered after a trial at the Hew York Special Term, construing the will of Martha Schluter, deceased, as charges certain legacies against the real estate of said testatrix.
    
      George P. Hotaling, for the plaintiffs, appellants.
    
      Joseph M. Allen and Leopold B. Pollak, for the respondents.
   Van Brunt, P. J. :

This action was brought to obtain a construction of the last will and testament of Martha Schluter and to determine whether certain pecuniary legacies given in the 3d clause of the will are a charge against the real estate of the testatrix embraced within the residuary clause thereof.

The testatrix died on September 20, 1900, without leaving any children or descendants of children her ■ surviving. Her husband had died before her. She left a will which was executed on the 3d of June, 1889, and also a codicil, executed in May, 1890, by which she ratified said will with the exception of one clause affecting a provision made for her brother, giving by said codicil a sum in trust which in her original will she had given absolutely.

. At the time of the execution of the will and codicil ■ she was in possession of personal property, consisting of stocks and bonds, amounting in value to the sum of $20,000, which property came to her from her deceased husband upon his death. This amount was much more than sufficient to pay the pecuniary legacies aforesaid. At the time of the execution of the will and codicil she was also seized of certain real estate in the city of Hew York known as Ho. 212 East Fifty-third street, which she specifically devised to Katy Pfeiffer, nee Schroeder, upon certain conditions. She was also seized of certain real estate situate in Far Rockaway, Queens county, the value of which, so far as I can see, is not stated in the record.

Subsequent to the execution of the will and codicil and in the year 1891 she invested a large portion of her personal property in . the purchase of real estate, designated in the complaint as Hos. 103 and 105 East Seventy-fifth street, one. of which, Ho. 105, she sold later and applied the proceeds toward the discharge of the mortgage on premises Ho. 103. Another portion of this personal property, about $5,000, she expended for living purposes and a trip to Europe. She died seized of the Fifty-third street property specifically devised, and the Far Rockaway property and also said premises Ho. 103 East Seventy-fifth street. At the time of her death her personal property amounted in value only to the sum of about $4,500, exclusive of certain chattels which she specifically bequeathed in her will.

By the 1st and 2d clauses of the will she made certain specific bequests after the payment of her debts and funeral expenses. It does not appear that she owed any debts. By the • 3d clause of the will she gave personal legacies aggregating about $10,000; and consequently the personal estate which the testatrix left was not sufficient to meet the legacies in question.

■' It was held in the court below that the legacies were a charge upon the real estate other than that which had been specifically devised. As the rule seems to be established that a will must speak as of the time of its making (Morris v. Sickly, 133 N. Y. 456), the question to be determined is whether, considering the circumstances of the testatrix at the time of making the will, and the provisions of the will, we can spell out any intention to make the legacies a charge upon the real estate. This is sought to be done because of the existence of a power of sale of real estate in the will; and our attention has been called to-many cases for the purpose of showing that where ■such a power exists and there is no other apparent object for it and where there is a deficiency of personal property at the time the power of sale was inserted in the will or codicil, an intention to charge the real estate with the payment of the legacies will be inferred.

In the case at bar, however, there was ample personal property at the time of the making of the will to pay all' the legacies therein mentioned, and had it not been for the change in the character of investment, such legacies could have been discharged out of the personal property with a very large margin oyer.

Under these, circumstances it seems impossible to suppose that the deceased had any intention at that time of charging the legacies upon any real estate, because it was not necessary and it is not shown that she had any real estate of any value upon which the power of sale could operate. It certainly was not intended to operate upon the estate specifically devised. The value of the property at Far Rockaway does not appear, presumably because it was small and insignificant. In all the cases cited by the respondents and also by the learned court in the opinion below, it appeared that at the timé of the making of the will or codicil containing the power of sale, the maker had reason to suppose that his personal estate was insufficient to pay the pecuniary legacies, and, therefore, it was argued that-the power of sale had been inserted in order that a fund might be provided to pay the same, there being no other reason for the existence of such power.

The rule laid down in the case of Morris v. Sickly (supra) seems to control the interpretation of this will. From the mere existence in a will of a power of sale, the intention to charge legacies upon real estate cannot be inferred, where at the. time of the making of the will there was ample personal property to cover all the pecuniary legacies. In all the cases cited where, because of the existence of a power of sale, the intention to charge the real estate with the payment of legacies has been held, a deficiency existed or was in prospect at the time of the insertion of the power of sale in the original will or codicil.

• The judgment should be reversed and a judgment entered adjudging that the pecuniary legacies ,wefe not a charge upon the real estate, with costs to be paid out. of the estate.

Patterson, O’Brien, McLaughlin and Laughlin, JJ., concurred.

judgment reversed and judgment ordered as directed in opinion, with costs to be paid out of the estate.  