
    Mary J. Sommers, Respondent, v. Catharine Schrader, Appellant, Impleaded with David Jaleel Sommers.
    
      Will—directions for themaintenanceby a devisee of the testator’s daughters—when a charge on the testator’s farm—when a lien prior to a mortgage given to-obtain money paid by the devisee to certain of the daughters — effect of a pyroffer by the mortgagee in possession of maintenance on the farm.
    
    A testator, whose'family at the time of his death consisted of his wife, his son, fpur married daughters and two single-daughters, gave all his real and personal property to his son, and directed him to pay certain legacies to his married daughters. He then made the following provisions for his wife and his two unmarried daughters:
    “ Thirdly. I will and order that my beloved wife Julia shall have her home knd maintenance and good and proper clothing in sickness and in health, and shall have the use and right to occupy the north room below and the room with the two bedrooms above, and privilege of cellar and thirty dollars yearly as long as she lives.
    
      “"Fourthly. I will and order that my son David Jaleel pay to my daughter Mary '• J. two hundred dollars five years after my decease without interest. And to my daughter Emily A. one hundred and fifty dollars five years after my decease without interest. And that my daughters Mary J. and Emily A. shall have their home and maintenance and good clothing in sickness and health here out of my estate as long as they are single and unmarried, and they shall have the same right and privilege of the house to use as was given to their beloved • mother, but if they marry, then they shall have the same given to them as my other daughters had, clothes, two beds, four pillows, bedclothes, one cow and fifty dollars.”
    The widow died and one of the unmarried daughters married, and thereafter the son executed a mortgage on the farm, subject to the interest of the remaining unmarried daughter. Subsequently the son, having become insolvent, abandoned the farm and informed the unmarried daughter that he was unable to support her on the premises and to carry out the provisions of his father’s will.
    In an action brought by the unmarried daughter against the son and the mortgagee to have her support declared a lien on the farm and have the farm sold to satisfy such lien, the mortgagee alleged that a portion of the moneys advanced on the mortgage had been used by the son to pay legacies to the testator’s married daughters which were a charge upon the land, and to the extent of the money so used the mortgagee claimed an equitable lien prior to that of the plaintiff. She further alleged that, as mortgagee in possession, she had offered to provide the plaintiff with a home and maintenance and everything required in the will on the said farm, and was still able, ready and willing to do so.
    
      Held, that the use of a part of the money advanced on the mortgage by the mortgagor in the payment of the pecuniary legacies did not entitle the mortgagee to invoke the doctrine of equitable subrogation as it did not appear that the mortgagee made the loan to protect any interest which she had in the premises or knew the purpose to which the money loaned by her was to be applied, and for the further reason that the mortgage was by its terms made subordinate to the plaintiff’s lien;
    That the duty of furnishing a home, maintenance, etc., to the unmarried daughter on the farm, was a personal obligation resting on the testator’s son, and that the plaintiff was not obliged to accept performance of that obligation from the mortgagee in possession.
    Appeal by the defendant, Catharine Schrader, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schoharie on the 11th day of September, 1900, upon the decision of the court rendered after a trial at the Greene Special Term, sustaining plaintiff’s demurrer to the third and fourth defenses in the answer of the defendant Catharine Schrader.
    The action was brought to recover the value of the plaintiff’s support under the will of her father, David Sommers, deceased; to have such support declared a lien on the farm described in the complaint, and to have the farm sold to satisfy the lien.
    The complaint alleges the death of David Sommers on April 20, 1883, owning the farm described in the complaint, and leaving a will which was duly admitted to probate on May 12, 1883, a copy of which"1 is annexed to the complaint. The testator left him surviving a widow, who has since died, one son, the defendant David Jaleel Sommers, and - six daughters, all of whom are married except the plain tiff. The testatór, by his will, gave to his son, David Jaleel, all his real and personal property, consisting of his homestead farm, the stock thereon, farming utensils, money, notes and accounts, and directed that he pay to his married sisters certain legacies,, amounting to $600. For his wife and his two unmarried daughters the testator made the following provisions : “ Thirdly. I will and order that my beloved w-ife Julia shall have her home and maintenance and good and proper clothing in sickness and in health, and shall have the use and right to occupy the north room below and the room with the two bedrooms above, and privilege of cellar and thirty dollars yearly as long as she lives.
    “ Fourthly. I will and order that my son David Jaleel pay to my daughter Mary J. two hundred dollars five years after my decease without interest. And to my daughter Emily A. one hundred and fifty dollars five years after my decease without interest. And that my daughters Mary J. and Emily A. shall have their home and maintenance and good clothing in sickness and health here out of my estate as long as they are single and unmarried, and they shall have the same right, and privilege of the house to use as was given to their beloved mother, but if they marry, then they shall have the same given to them as my other daughters had, clothes, two beds, four pillows, bedclothes, one cow and fifty dollars.”
    After the death of the testator his son, David Jaleel, accepted . the devises and bequests to him and supported his mother at the homestead so long as she lived, and also furnished a home -and maintenance to the plaintiff on the farm until sometime in December, 1899, her other sister, Emily A., named in this 4th paragraph of the will, having previously married. In December, 1899, David Jaleel Sommers, having become insolvent, removed from and abandoned the farm, and informed the plaintiff that he was unable to support her and to carry out any longer the provisions of his father’s will, and has refused to return to the premises and furnish her support thereon.
    On October 16, 1894, David Jaleel Sommers and his wife executed and delivered to the defendant Catharine Schrader a mortgage on the said farm for the consideration of $2,200, which contains the following provision : “ This conveyance is made subject to the life lease of Mary Jane Sommers, which is mentioned and described in the last will and testament of David Sommers as follows: 1 That my daughter Mary J. Sommers shall have her home and maintenance, and good clothing in sickness and health here out of my estate as long as they are single and unmarried, and they shall have the same right and privilege of the house to use as was given to their beloved mother.’ ”
    The defendant Catharine Schrader has interposed an answer containing several defenses, the third of which is, in substance, that she is the holder of the mortgage mentioned in the complaint for $2,200, the consideration of which was a mortgage of $800 held by her and theretofore given by David Jaleel Sommers to her father, .and the remaining $1,400 of which was for money loaned. She alleges “ that the said David Jaleel Sommers took said money so borrowed of this defendant as aforesaid, amounting to $1,400 or thereabouts, and used it to pay the legacies, and interest thereon, given in said will; ” that the legacies were made a charge on the farm devised, and this defendant claims that to the extent of the money furnished by her in payment of the legacies, she is entitled to a lien in equity •on the farm, prior to that of the plaintiff. She admits that the mortgage contains the clause above quoted.
    For a fourth defense she alleges that she, as mortgagee in possession of the farm, has offered to provide plaintiff with a home and maintenance and everything required in the will on the said farm, and is still able, ready and willing to provide a home and maintenance for the plaintiff on the farm.
    The plaintiff demurred to the third and fourth defenses as insufficient in law upon the face thereof, and from the interlocutory judgment sustaining the demurrer this appeal is taken.
    
      Watson Lamont, for the appellant.
    
      L. W. Baxter, for the respondent.
   Edwards, J.:

The demurrer to the third defense, that the defendant Catharine Schrader has an equitable lien on the farm .prior to that of the plaint-tiff, was properly sustained. The only ground on which such an. equitable lien is claimed is that a part of the money which she loaned to David Jaleél Sommers, secured by the mortgage, was used by him. in payment of the pecuniary legacies. She claims the right of subrogation from the mere fact of such an appropriation by the mortgagor. It was simply a voluntary loan ,of money to the mortgagor* She was under no duty to make the loan, nor was it in any way. necessary for the protection of any interest that she had in the--. premises. It does not appear that she even knew of the purpose towhieh the money lent by her was to be applied. Quite clearly she is not in a situation to invoke the doctrine of equitable subrogation*. Furthermore, the lien of her mortgage was, in express terms, made subordinate to the lien of -the plaintiff on the premises. :

•. This brings us to the consideration of the fourth defense,., which is, in substance, that this defendant, while .in possession of; the farm as mortgagee, offered to provide the plaintiff with- a home and maintenance on said farm, and everything required in the will,., and is now able and willing to provide such home and maintenance,,. ■ but the plaintiff has refused to accept the same.

The defendant’s contention is that the will makes the plaintiff’s, support a charge on the real estate, buti does not charge the devisee,,. David Jaleel, with, the duty of furnishing such support, and that,,inasmuch as there is no personal obligation on him, the plaintiff is. compelled to accept support on the farm at the hands of any one in possession who is willing to furnish it.

I cannot agree with the contention that David was not directed by the will to furnish a home and maintenance for the plaintiff* The intention of the testator in that respect must be gathered from the entire will, read in the light of the circumstances under which it was made and the relation of the testator to those who were the-natural objects of his bounty and solicitude; and such intention, so-ascertained, must be. effectuated, although the language used to-express it is not the most appropriate that could have been employed by the testator. The will, when thus construed, I think, evinces: an unmistakable intention of the testator that - David, to whom he. gave all his property, should furnish a home and maintenance for the plaintiff, an unmarried daughter of the testator, on the farm; and to secure this he has made such support a charge on his real estate.

As I have said, in ascertaining the intention of the testator we must consider not only the language of the will, but the circumstances under which it was made. He had a wife, a son, David Jaleel, and six daughters. To the son he gave Ms farm, the stock and utensils thereon and the remainder of his personal property; to the four married daughters he gave one hundred and fifty dollars each, which. he directed his son to pay. There remained then to be provided for his wife and his two unmarried -daughters, one of whom is the plaintiff. He directed that his wife should have her home, maintenance and clothing and certain rooms in the house and thirty dollars yearly during her life. He does not, in express terms, direct that his son shall furnish this home and maintenance to his mother, nor does he direct who shall pay her the thirty dollars yearly, but I think there can be no possible question that the payment of the thirty dollars was the personal obligation of the son, and there can be no less a question, I think, that it was the intention of the testator that the furnishing of the home and maintenance should be by the son. It is almost inconceivable that the testator should have intended to leave his wife with a pittance of thirty dollars a year and rooms and board in the house on the farm, to be furnished by any one who might happen to be owner or in possession, however distasteful it might .happen to be to her. Substantially the same provision is made for the plaintiff as for her mother for home and maintenance so long as she remains unmarried. In case of her marriage, the testator directs that she shall have the same given to her as his other daughters had, clothes, two beds, four pillows, bedclothes, one cow and fifty dollars; ” yet no express direction is given as to who shall furnish them. It was evidently Ms intention that they should be furnished by his son who took the entire estate, and I think it is equally evident that her home and maintenance until married should also be furnished by the son.

At the time of the making of the will the wife and two unmarried daughters were living with and being provided for by the testator, and his clear purpose seems to have been that, when he was-taken away, his son David, to whom he gave all of his property, should be substituted in his place as the one who should continue to provide a home and maintenance- for his mother during her life, and for his two unmarried sisters until their marriage; in other words, that after the testator’s death his wife and two single daughters should1 be cared for by David in the .same manner as they had been cared for by him.

The defendant’s contention that the father simply gave'to his daughter, the plaintiff, the right to be supported on the farm by any person whomsoever- who might chance to become the owner, ór be in possession of the farm, is to presume him to have been destitute-of ordinary parental affection and solicitude and is quite foreign to his intention, as gathered from -his entire will.

The judgment appealed from should be affirmed.

All concurred, except Chase, J., not sitting. .

Interlocutory judgment affirmed, with costs, with usual leave to amend.  