
    Matter of the Judicial Settlement of the Account of Edward S. Avery, Theodore S. Avery and Helen F. Avery Tucker, as Administrators with the Will Annexed of the Estate of Mary E. Brinckerhoff, Deceased.
    (Surrogate’s Court, Westchester County,
    September, 1914.)
    Wills—Specific legacies—Setting apart all rest, residue and remainder OF ESTATE TO PRODUCE INCOME—WHAT BECOMES PART OP RESIDUARY ESTATE—WlIAT TREATED AS PART OF ESTATE IN REMAINDER.
    Where all the rest, residue and remainder of an estate, and all funds in the hands of executors and trustees set apart to produce incomes and not specifically devised or bequeathed, and all lapsed and void legacies, were given, devised and bequeathed to three persons in equal shares who were general legatees under the will, a specific legacy given to one who predeceased testatrix and the principal of two separate trust funds which testatrix directed on the death of the life beneficiaries was to become a part of the residuary estate, will be treated as part of the estate in remainder after the payment of the general legacies in full.
    Proceeding upon the judicial settlement of account of administrators with the will annexed.
    Satterlee, Canfield & Stone, for administrators, C. T. A,
    Harrison T. Slosson, special guardian.
    Emmet & Parish, for New York Life Insurance and Trust Company, as trustees, etc.
    Charles P. Williams, for Mary A. Williams, legatee.
    Remsen & Parsons, for New York Kindergarten Association.
    Tison & Goddard, for Amelia M. Clark, legatee.
    Huger W. Jervey, for Edward S. Avery, Theodore S. Avery and Helen F. Avery Tucker, individually.
   Sawyer, S.

The accounting filed in this proceeding shows that the estate of the decedent is insufficient to pay the general legacies in full. The specific legacies have been turned over and a large portion of the general legacies have been paid.

Under the second clause of the will of the testatrix, William G. Hoople, who predeceased her, was given a legacy of $10,000.

Under the ninth clause of the will the testatrix established two trust funds, as follows:

“ Ninth. I direct my executors to set apart two funds of $12,000 each, and to pay the income of one fund to Mary O’Brien, and the income of the other fund to Catherine Morris so long as they live respectively, the principal of the sums or funds on their respective deaths to become a part of my residr uary estate.”

The residuary clause of the will reads as follows:

Fifteenth. All the rest, residue and remainder of my estate and all funds in the hands of my executors and trustees set apart to produce incomes and not herein specifically devised or bequeathed, and all lapsed and void legacies, I give, devise and bequeath to Edward S. Avery, Helen F. Avery and Theodore S. Avery equally share and share alike.”

Mary O’Brien, one of the beneficiaries of the trust fund created under the ninth clause, is dead. The other beneficiary, Catherine Morris, is still alive.

The attorneys for the administrators with the will annexed claim that under the fifteenth clause of the testatrix’s will there was a separate gift of all lapsed legacies to Edward S. Avery, Theodore S. Avery and Helen F. Avery Tucker and that, therefore, the legacy of $10,000 bequeathed to William G. Hoople, the same having lapsed by reason of his death before the testatrix, should be paid to these three individuals before any payment therefrom is made to make up the deficit in the payment of the general legacies. Said attorneys also claim that the principal of the trust funds mentioned in the ninth clause of the will, upon the death of the beneficiaries mentioned therein, should be paid to Edward S. Avery, Theodore S. Avery and Helen F. Avery Tucker, individually, and that the same should not be applied toward the payment of the deficit of the general legacies.

A careful consideration of the will convinces me that these contentions ought not to be sustained; The general principle of the law is that legacies should be paid in full before any payment to the residuary legatee and that the residuary legatee cannot call upon the general or specific legatees to make an abatement so as to share proportionately with him. The whole scheme of the will shows clearly to my mind that the intention of the testatrix was to create a large number of general and specific legacies and after these were all paid then the rest, residue and remainder to go to the residuary legatees specifically mentioned.

It can be assumed that the testatrix in framing her testamentary scheme contemplated that her property was sufficient in amount to carry out all details.

The capital of the trust funds created by the ninth clause of the will cannot be considered as a specific bequest to Edward S. Avery, Theodore S. Avery and Helen F. Avery Tucker under the fifteenth clause of the will, because the intention of the testatrix is shown very clearly when she states in the ninth clause that “ the principal of the sums or funds on their respective deaths to become a part of my residuary estate.” This shows conclusively that the testatrix considered that the two funds in question should become a part of the residuary estate. The inclusion in the fifteenth clause of the will of “ funds in the hands of my executors and trustees set apart to produce income and not herein specifically devised or bequeathed, and all lapsed or void legacies ” adds nothing to the clause and takes nothing from it whatever. Least of all does it change the character of the clause, rather it goes to confirm its character, if confirmation were necessary, for these are things of the exact sort that find their proper places in the residue.

If the testatrix had intended to bequeath the principal of these trusts funds and all lapsed legacies to the persons named as residuary legatees, personally, to the exclusion of the general and specific legatees, she certainly would have provided for the same in another separate and distinct clause. By carefully considering the provisions of the will it will be observed that the residuary legatees have been previously named in the will as general 'legatees and are large recipients of the bounty of the testatrix to the extent of over half a million dollars. It could not have been the intention of the testatrix that in addition to the above liberal provision for these residuary legatees they were to be preferred, further at the expense and abatement of the general legatees.

I am of the opinion that, considering the whole will, there was a clear intention on the part of the testatrix to treat the principal of the two trust funds created under the ninth clause of the will, and the lapsed legacy of $10,000 mentioned in the second clause, as part of the rest, residue and remainder of her estate after the payment of the general legacies in full. There could be no rest, residue and remainder of the estate—no real residuary fund—until that was done. Matter of Title Guarantee & Trust Co., 195 N. Y. 339.

Findings and decree may be submitted on notice.

Decreed accordingly.  