
    American Baptist Home Mission Soc. et at. v. Foote et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    May 10, 1889.)
    1. Wills—Legacies—Charge on Land.
    Testator gave pecuniary legacies amounting to $2,700, and gave “all the rest, residue. and remainder” of his property to a legatee. His personalty amounted to $1,800, and it did not appear that it was diminished by unexpected causes after his will was made. Held, in view of the facts, that it .was testator’s intention to charge the real estate with the legacies, though he did not do so expressly.
    2. Corporations—Pleading.
    Under Code Civil Proc. N. Y. § 1775, providing that the complaint must show whether a party to an action is a foreign or domestic corporation, and section 3343, subd. 18, defining a domestic corporation to be one created by the laws of the state, or located therein and created by the laws of the United States, or pursuant to the laws in force in the colony before April 19,1775, it is sufficient if the complaint alleges that the corporation was created first under statutes of other states, and that it was also incorporated under a specified chapter of the laws of New York for á given year, as the facts are stated from which a conclusion as to whether it is a foreign or domestic corporation must follow.
    Appeal from special term, Delaware county.
    The complaint alleges that the plaintiff the American Baptist Home Mission Society is a corporation duly organized and incorporated under special acts of the legislature of the state of Hew York, describing them; that the plaintiff the American Baptist Missionary Union is a corporation duly organized and incorporated first under certain acts of the legislature of the state of Pennsylvania, describing them, also under an act of the state of Massachusetts describing it; also under chapter 17 of the Laws of the state of Hew York for 1870, entitled “An act in relation to the American Baptist Missionary Union;” that the plaintiff the Baptist Missionary Convention of the state of Hew York is a corporation of the state of Hew York, duly organized and incorporated; that each of said corporations is authorized to receive the bequests thereinafter specified; that on December 14, 1882, Lois J. Fitch died, leaving a will of real and personal property, which was duly probated in Delaware county on January 29, 1888; that said will, after giving certain specific legacies, gave to each of the defendants, except Ezekiel T. Foote, a pecuniary'legacy aggregating $1,200, and to each of the plaintiffs the sum of $500, and then came this clause: “Thirteenth. I give, devise, and bequeath all the rest, residue, and remainder of my property, of every name and nature whatsoever, to Ezekiel T. Foote, to have and to hold the same forever, ” and Orlo T. Foote is appointed executor. That the other defendants, except- Ezekiel T. Foote, are made defendants because they decline to be plaintiffs, and the plaintiffs sue for the benefit of all the monetary legatees. That the said testatrix did not have sufficient personal property to pay said legacies in full, and the executor has had an accounting and settlement as to the personal property, resulting in a decree on March 13, 1885, distributing to the plaintiffs each the sum of $340.70, and a proportionate amount to each of the other legatees; and the balance of the legacies, besides interest, is wholly unpaid. That the deceased left certain real estate, (describing it,) which is occupied by the defendant Ezekiel T. Foote; he having elected to take under the will as residuary legatee and devisee, and being in the receipt of the rents and profits, and refusing to pay the balance of the legacies. Judgment is demanded that the legacies be declared a lien on the real estate, and that the same be sold for their payment. The defendant Ezekiel T. Foote demurs on the ground that the complaint “does not state facts sufficient to constitute a cause of action, and is insufficient in law upon the face thereof.” The demurrer was overruled, and defendants appeal.
    Code Civil Proc. H. T. § 1775, provides that in an action by or against a corporation the complaint must show whether the corporation is foreign or domestic. Section 3343, subd. 18, defines a domestic corporation as one which is created by the laws of the state, or is located therein and created under the laws of the United States, or one which exists pursuant to laws in force in the colony prior to April 19, 1775.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Robert T. Johnson, for appellants. John B. Gleason, for respondents.
   Merwin, J.

It is claimed by the appellants that the complaint is insufficient on its face, because it does not state whether the plaintiff the American Baptist Missionary Union is a foreign or domestic corporation, as required by section 1775 of the Code. It was held at special term that this section was substantially complied with, inasmuch as the facts were stated from which a conclusion must follow under the definition given in subdivision 18 of section 3343. This is a reasonable construction, and should be followed. Ho point is made on this subject as to the other plaintiffs. If the complaint is good as to them, there is some doubt at least about the ground of demurrer as taken being available. If the point is made as to all the plaintiffs, it is not entirely clear that demurrer in this form will lie. Bank v. Corbett, 10 Abb. N. C. 85; Furniture Co. v. Grumme, 10 Civ. Proc. R. 176. But that question need not now be decided.

It is further claimed that under the will in question the legacies are not a charge on the real estate. There is no specific charge. The legacies are given, and then comes the residuary clause, “all the rest, residue and remainder of my property. ” The effect to be given to such a residuary clause has been a matter for consideration in a great many cases, with results not in harmony. The latest expression of the views of the court of appeals is found in Brill v. Wright, 19 N. E. Rep. 628. It is there said that the eases in this state establish these two propositions: First, that general language in a will giving legacies, followed by the usual residuary clause, is alone insufficient to charge the legacies on the realty and, second, that such language will justify such charge, if it is made to appear by extrinsic circumstances, such as may, under the rules of law, be resorted to to aid in the interpretation of written instruments, that it was the testator’s intention that the legacies should be charged on the land. In that case, the testator, after providing for the payment of debts, gave to B. the sum of $2,000, to be paid within three months after his (the testator’s) decease, and then gave “all the rest and residue of all my real and personal estate” to other parties. It appeared that the debts were small, and that the personal estate would have been sufficient to pay the legacy, had it not been for extraordinary expenses in the proof of the will and on the ac-. counting. It was held that the legacy was not a charge on the real estate. Significance was given to the fact that under ordinary circumstances the personal estate would have been sufficient, and to the fact that the legacy was made payable in three months. It may be that, under the rule laid down in the above case, the legacies in question would not, upon the face of the will, be a charge on the real estate. It is, however, alleged, and it is a proper circumstance to be considered, that the testatrix did not have sufficient personal property to pay the legacies in full. A circumstance of this kind,'—an inadequacy for the payment of legacies,—although greater in degree, existed in the case of McCorn v. McCorn, 100 N. Y. 511, 3 N. E. Rep. 480, and was considered very significant on the question of intention. There was there, as here, the use of the expression “the rest of the property,” and that was deemed important. There was in the mind of the testatrix, in the use of the residuary clause, no distinction between real and personal property. It was all apparently as one mass, from which she took and devoted to certain purposes certain sums and the rest or balance gave to the residuary legatee. In this respect this case differs from the Britt Case. The complaint does not allege the date of the will. The allegation of inadequacy is general. We cannot assume there was any material change in the estate between the date of the will and the death. We must rather assume, that inadequacy of the personal estate, as alleged, was known to'the testatrix. If the estate was depleted by any éxtraordinarv circumstances after the death, or after the will was made, that is matter to be developed at the trial. The ordinary expenses of settlement the testatrix is supposed to have taken into account. Nor can we assume that the amount of deficiency—about one-third—is such as can be fairly ■called a small and unexpected lack of personal property, so as to have no bearing on the question of intention. It is not to be presumed that the testatrix would in form give $2,700, to be paid out of a fund of $1,800. Having in view the allegation of inadequacy and the form of the residuary clause, we are •of the opinion that under the complaint the real estate would be chargeable with the balance of the legacies. It follows that the judgment should be affirmed, with costs, with leave to the defendants to answer upon payment of ■costs of demurrer and of the appeal. All concur.  