
    The American Baptist Home Mission Society, et al., Resp’ts, v. Ezekiel T. Foote, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 12, 1889.)
    
    1. Practice — Complaint—When sueeicient—Code Civ. Pro., §§ 1775, 3343, sued. 18.
    In an action to have certain legacies declared a lien on the real estate of a testator, and that the same be sold for their payment, it was claimed by the defendant that the complaint was insufficient on its face, because it did not state whether the plaintiff, “The American Baptist Missionary Union,” was a foreign or domestic corporation, as required by section 1775 of the Code Civil Procedure. Held, that inasmuch as facts were stated from which a conclusion must follow under the definition given in subd. 18, § 3343, Code Civ. Pro., section 1775 is substantially complied with.
    3. Wills — Construction oe — When legacy chargeable upon real estate.
    After the legacies are given, follows the residuary clause, “ all the rest residue and remainder of my property ” to the defendant. No distinction is made in the will between real and personal property. It was as one mass, from which they took and devoted to certain purposes certain sums, and the balance they gave to the defendant as residuary legatee. It appeared that there was not sufficient personal property to pay the legacies in full, and that this fact must have been known to the testatrix. Held. that in view of the inadequacy, the real estate should be chargeable with the balance of the unpaid legacies.
    Appeal from an interlocutory judgment entered upon the decision of the Delaware special term, April, 1888, overruling the demurrer of the defendant, Ezekiel T. Foote, to the complaint.
    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 New 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 New 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 New York,” is a corporation of the state of New York duly organized and incorporated; that each of said corporations are authorized to receive the bequests therein-after 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, 1883; 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 acccounting 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, Ezekial 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.”
    
      Robert T. Johnson, for app’lt; John B. Gleason, for resp’ts.
   Merwin, J.

It is claimed by the appellant 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. No 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. Irving N. Bank v. Corbett, 10 Abb. N. C., 85; Hefner and S. F. Co. v. Crumme, 10 Civ. Pro. Rep., 116.

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 (20 N. Y. State Rep., 305). It is there said that the cases 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 accounting. 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), 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 Brill 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 extraordinary 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, TOO, 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 defendant to answer upon payment of costs of demurrer and of the appeal.

Habdin, P. J., and Mabtin, J., concur.  