
    SUPREME COURT.
    Agnes Reyher executrix, &c., agt. Caroline Reyher and others.
    
      Will—When real estate of the testator cha/rgeable with payment of legacies.
    
    The primary fund for payment of legacies is personal estate and realty, cannot he charged with the burden unless by express direction or clear intent drawn from the will, aided by outside circumstances if any there be.
    The will or R., after directing the payment of his debts, directed his executors to pay to his father, mother, brother and sister, certain sums of money, and then directed that all the rest residue and remainder of his estate, both real and personal, be equally divided between his daughter and widow who was appointed executrix, giving her full power to sell and convert all the estate into money. The personal property was insufficient to pay the legacies in full:
    
      Held, that the legacies were chargeable upon the real estate.
    
      New York Special Term, April, 1885.
    Action by the plaintiff for construction of the will of August Reyher, deceased. After directing the payment of his debts the testator directed his executor to pay to his father, mother, brother and sister, certain sums of money, and then directs that all the rest, residue and remainder of his estate, both real and personal, be equally divided between his daughter and his widow the plaintiff who was appointed executrix. The executor was given full power to sell and convey all the estate into money. The personal property was not sufficient to pay the legacies in full. A portion of the real estate had been sold by the plaintiff under the power of sale.
    
      F. C. Steffen, for plaintiff.
    
      E. Beneville, guardian ad litem, for infant defendant.
    
      A. C. Anderson, for defendant, F. Bruckman.
    
      R. Dulon, for other defendants.
   Beach, J.

It would be satisfactory to the court to construe this will in a way to increase the residuary estate for widow and child, whose interests are provided for in the residuary clause. To do. so, however, would substitute another’s ideas for those of the testator, as construed by frequent adjudication, and subvert legal authority often announced and impossible to weaken or avoid.

The primary fund for payment of legacies is personal estate, and realty cannot be charged with the burden unless by express direction, or a clear intent drawn from the will, aided by outside circumstances if any there be. The instrument at bar gives the legacies, after payment of debts and funeral expenses. The testator’s parents, sisters and brothers are the beneficiaries. A direction to pay all within one year after death follows, and then a disposition of all the rest, residue and remainder of his estate, both real and personal, by division between wife and daughter.

This clause seems to contemplate a residuum of both real and personal property, and the absence of any prior devise of realty to create a residue, supports the inference of intention to charge it with the burden of legacies, should there be a deficiency in personalty. The question has frequently been before the courts, and I examined the adjudications in Le Fevre agt. Toole et al. (84 N. Y., 95), when presented at special term. The case of Bevan et al. agt. Cooper et al. (72 N. Y., 317), countenances no different conclusion. The intent of a testator is to be gathered from his will, consequently the modes of expression vary in every case. In the one last cited the residuary clause separated real from personal estate; there was a plain devise of realty, and the legacies were given to strangers.

With due regard to controlling' authority, I do not think the conclusion can be avoided that the legacies here are chargeable upon testator’s real estate.

Decree ordered charging legacies upon real estate.

Note. — No appeal was taken in the case.— [Ed.  