
    Matter of the Judicial Settlement of the Account of William H. Kouweniloven as sole Executor of the Last Will and Testament of Anthony Carey, Deceased.
    (Surrogate’s Court, Kings County,
    April, 1909.)
    Executors and administrators — Distribution and disposal of personal estate — Funds, assets and securities for distribution and to pay legacies — Liability of realty — Rents collected by executor.
    Where, at the time of the making of a will devising and bequeathing to testator’s children in equal shares all the residue and remainder of his estate, his holdings of real and personal estate were such as to demonstrate an intention that the realty should be charged with the payment of specific legacies amounting to $100,000 in case of deficiency of personal assets, a subsequent clause of the will that, in such contingency, the children should take the residuary estate in certain other specified proportions must be disregarded.
    Rentals received by the executor under a provision giving him full power to lease or convey any or all the testator’s real estate are applicable to the payment of the specific legacies.
    Proceeding upon the judicial settlement of the account of an executor.
    Van Wyck & Mygatt, for petitioner.
   Ketcham, S.

Upon the settlement of the executor’s account it becomes necessary to determine whether certain specific legacies were charged upon both personal and real estate.

The will contains six legacies, amounting to $100,000. It then proceeds:

Seventh. All the rest, residue and remainder of my property and estate I give, devise and bequeath to my children equally.

Eighth. If my estate should not be sufficient to pay these legacies I direct that my children share in my residuary estate in the proportions as follows, namely, John and Joseph one fifth each and each of the others one tenth.

“ Ninth. I give my executors or executor for the time being full power and. authority to sell and convey or lease any or all of my real estate.”

Under the power to lease, the executor has received rentals, the disposition of which requires the determination of the question above stated.

The testator’s holdings of real and personal estate at the time when the will was made were such as to demonstrate an intention that the lands were to be devoted to these legacies, in so far as the personal estate was insufficient for the purpose, unless such intention is forbidden by the eighth paragraph, quoted supra.

. The rule which is stated as one which admits of no exception in the construction of written instruments is that “ Where an estate is given in one part of an instrument in clear and decisive terms, such estate cannot be taken away or cut down by raising a doubt upon the extent or meaning or application of a subsequent clause, nor by inference therefrom nor by any subsequent words that are not as clear and decisive as words of the clause giving that estate.” Roseboom v. Roseboom, 81 N. Y. 356, 359.

In Benson v. Corbin, 145 N. Y. 351, it is said: “ Where there is primarily a clear and certain demise of a fee, about which the testamentary intention is obvious and without ambiguity, the estate thus given will not be cut down or lessened by subsequent words which are ambiguous or of doubtful meaning. If a slight circumstance or a slender reason will in ordinary cases prevent the application of the general rule (that words referring to “ death ” are construed to mean “ death during the lifetime of the testator”), the circumsiance or the reason must be strong and decisive where the construction collides with a plain devise in fee, and forces a change of its terms by cutting it down to a lesser estate. We do not easily trade a certainty for a doubt.”

Under the rule stated in these cases, the eighth paragraph must be disregarded. Grammatically, it contains nothing of a dispositive character, since it only affects to dispose of a residue in case there is none. If it were sought to import into this paragraph a meaning which its terms refuse to yield, any effort to make use of such constructive meaning to cut down the clear and precise gift of the residue contained in the seventh paragraph would be forbidden by the cases cited.

So far as personal property was inadequate for the payment of the legacies the testator charged the same upon his real estate, and the decree should provide that the rentals which the executor has received under the power given to him by the will be applied to the payment of the legacies.

Decreed accordingly.  