
    In the Matter of the Estate of Emma Chadwick, Deceased.
    Surrogate’s Court, Erie County,
    November 15, 1933.
    
      Stanley & Gidley, for Frank Chadwick.
    
      Charles B. Moulthrop [Elijah W. Holt of counsel], for Emily Norcott.
   Hart, S.

This proceeding was commenced on the petition of Frank Chadwick, praying for a construction of paragraph 3 of decedent’s will which reads as follows: “3. I give and bequeath to my son, Frank Chadwick, the sum of Five Hundred ($500.00) dollars in cash, and also household furniture, as follows: One bed, One couch, and one picture entitled ‘ The Duel.’ ”

The will of decedent was executed on the 20th day of September, 1923, and it appears that at that time the decedent was about seventy-six years of age, and was possessed of a bank accoimt in the Erie County Savings Bank in the sum of $1,155.75 and of certain real property situate in the city of Buffalo, and no other personal property.

At the time of decedent’s death she was possessed of no personal property whatever except a very small amount of household furniture, and was the owner of the said real property. The personal property bequeathed in article 3 has been delivered to said legatee, and the question specifically raised is whether bhe general legacy of $500 is a charge upon the real property left by said decedent. The will contains no provision that such legacy shall be made a charge upon the real property, nor is the payment directed to be made out of the proceeds of the sale of the real property.

I am, therefore, of the opinion that it was the intention of said decedent not to so charge said real property with the payment of said legacy, and that said legacy is not charged by implication, said decedent at the time of making said will being a very aged woman, and at that time having ample personal property out of which said legacy could be paid.

A decree may enter denying petitioner’s claim on the merits.  