
    In the Matter of the Judicial Settlement of the Accounts of Rosie Matthews and Hymah Levy, as Executors, etc., of Sarah Waters, Deceased. Rosie Matthews, a Legatee, Appellant; Philip Waters, a Legatee, Respondent.
    First Department,
    December 6, 1907.
    "Will construed. — general and specific legacies — bequest of proceeds of specific lands — insufficiency of assets — general legacies fail.
    A bequest of §1,000 to a nephew and the sum of §300 to each of certain benevolent institutions named are general legacies not amounting to' a bequest of a particular thing or money or of a particular fund designated from all others of the same kind.
    But a direction to executors to sell specific real estate and out of the net proceeds to pay one-half to a daughter of the testatrix, or in the event of her death at or before the sale to her surviving child or children, the income of the balance to a son for life and upon his death the principal to said daughter or if dead to her surviving issue, is a specific bequest of an article or part of the testator’s estate which is identified aud distinguished from all other things of the samekfnd and which may be satisfied only by the delivery of the particular thing. The proceeds of a sale of specified properly which is directed to be sold is just as much a.specific legacy as if the property itself were given.
    Such specific legacy is not subject to abatement with the general legacies on a deficiency of assets, and hence, where the assets are insufficient, the general legacies must fail and cannot be charged upon the proceeds of the specific lands directed to be sold.
    Appeal by Rosie Matthews, a legatee, from certain parts of a decree of the Surrogate’s Court of the county of ¡New York, entered in said Surrogate’s Court on the 5 th day of'August, 1907, directing the distribution of the estate of Sarah Waters, deceased.
    
      David S. Myers, for the appellant.
    
      Philip Waters, for the respondent.
   McLaughlin, J. :

Sarah Waters died on the 20th of May, 1905, leaving a last will and testament, executed a little over two years before her death, which was, on the. twenty-second of June following,' admitted to probate and letters testamentary issued to the executors therein named, 'the accounting parties in this proceeding. Mrs. Wáters by her will first directed that her debts and funeral expenses be paid, and then she gave, the sum of $300 each to the Montefióre Home for Chronic Invalids, Beth Israel and Mt. Sinai Hospitals in the city of Hew York, and then gave to her nephew, Philip Waters, $1,000. In the ,6th. clause of her will she directed her executors to sell at public or private sale, as soon as possible after her death, her real estate located at 68 Mott street in the city of Hew York (which was all the real estate she-had), and for that purpose, she authorized'and empowered them to make, execute and deliver all necessary and proper papers. What she desired done with .the proceeds derived from sucli sale is best stated in the language used hv her in this clause of her will, viz.: Upon said sale of my said real estate I order and direct my said executors or the survivor of them to pay out of the net proceeds of Such sale one-half thereof-to my daughter Eosie Matthews, or in the event of her. death at or before the' said sale, to the surviving child or children of my said daughter. The balance of the remaining one-half of the net proceeds of said sale, I give, bequeath and devise to my said. exec'utors, or the survivors of' them, in trust, to invest the same as they or the .survivor of them deems prudent and to pay over the net income or revenue arising therefrom to my son Hymen Waters during his lifetime. Upon'tlie death of my said son Hymen Waters, I direct and order my said executors or the survivor of them to pay over the whole principal of the sum so invested to my daughter Eosie Matthews, or" in the" event of her death before said Hymen Waters to her surviving child or children.”

The executors, as directed, sold the real estate and a substantial amount was realized therefrom. The entire personal estate of which the 'testatrix died possessed being insufficient in amount to pay the funeral and administration expenses "and her debts, resort for that purpose was necessarily had to-a portion of the proceeds derived from the sale of the real estate. There still remains from such proceeds in the hands of the executors for distribution more than sufficient to pay the bequests to the; several" hospitals named and the nephew, Philip Waters. These legatees dlaim that the proceeds, or so much thereof as" is necessary for the payment of their respective legacies, are applicable to tlieir payment. The daughter, Hosie Matthews, claims that none of the proceeds is applicable to the payment of such legacies or any of them., The learned surrogate held that the proceeds of the sale of the real estate in the hands of the executors for distribution resulted from the exercise of a mandatory power of sale, and, therefore, such proceeds were available for the purpose of paying such legacies. It is from this portion of the decree that the appeal is taken.

The gifts to the nephew and the several hospitals are general legacies, not amounting to a bequest of a particular thing, or money, or of a particular fund designated from all others of the same kind, (Crawford v. McCarthy, 159 N. Y. 514.) This, however, is not true of the bequests contained in the 6tli clause of the will. That clause, it is true, contains a mandatory power of sale, but this is for a specific and definite purpose, clearly expressed in the same clause that gives the power. That purpose was to produce a specific fund for the sole .benefit of the daughter and son of the testatrix, and the executors were directed 'to divide the same between tliém in the manner there set out. The intent of the testatrix in this respect is clearly expressed and cannot be misunderstood if effect be given to the language used by her. The gift of the proceeds of the sale of the real estate is a specific bequest. It comes squarely within the definition of a specific legacy, which has been defined as “ A gift by will of a specific article or part of the testator’s estate, which is identified and distinguished from all other things'of the same kind, and which may be satisfied only by the delivery of the particular thing.”' (18 Am. & Eng. Ency. of Law [2d ed.] 714; Crawford v. McCarthy, 159 N. Y. 519.) Had the real estate been given instead of the proceeds, no one, I take it, would seriously contend that the other legatees could compel a sale for. the payment of their legacies. The fact that she directed a sale and the net proceeds to be divided in no way changed the situation. The proceeds of a sale of specified property, which is directed by the will to be sold, are just as much a specific legacy as if the property itself had been given, (Crawford v. McCarthy, 159 N. Y. 519 ; Matter of Brett, 57 Hun, 400; Boston Safe Deposit & Trust Co. v. Plummer, 142 Mass. 257.)

If the foregoing views be correct, then the legacies bequeathed to the several institutions and the nephew referred to must fail of payment, there being a deficiency of assets with which to pay the same in whole of in part, because a specific legacy is not subject to abatement with general legacies on a deficiency of assets (Toch v. Toch, 81 Hun, 410) ; or, in other words, as between specific and general legacies, where the personal property is not sufficient to pay the debts and the specific legacies, the general legatees must lose their legacies. (Wallace v. Wallace, 23 N. H. 149 ; Code Civ. Proc. § 2721.)

The decree, in so far as appealed from, is reversed, and the matter remitted to the Surrogate’s Court to enter a decree in accordance with this opinion.

Pattebson, P. J., Laughlin, Houghton and Lambebt, JJ., concurred.

Decree reversed, and matter remitted to Surrogate’s Court as stated in opinion.  