
    John W. Sherrer, Respondent, v. Sarah L. Bartlett, Appellant, Impleaded with Hattie L. Boyce.
    
      Will ■—construction of a gift in fee of land subsequently charged by the will with a legacy — objection that other land was primarily chargeable.
    
    A testator by bis will gave to bis wife and to ber beirs and assigns forever a plot of land in the town of Hector. By a subsequent clause, as changed by a codicil, he provided, “ I give and devise to my said wife, Amitta Sherrer, one undivided half of my home farm in the town of Montour, N. T., to her, her heirs and assigns forever. The remaining one-half of said farm I give and devise to my said wife, Amitta Sherrer, to her use and benefit for and during ' the term of her natural life; and in case the provisions herein made shall at any time be insufficient, in her opinion, for her maintenance and support, then I hereby authorize and empower my said 'wife to lease, mortgage or sell said premises, or any part thereof, and to execute any and all conveyances to accomplish such purpose, and to appropriate the proceeds thereof to her own use; ” the codicil further provided, “I add to my said will the following bequests: To John W. Sherrer I will and bequeath five hundred dollars, to be paid one year after the decease of my said wife, said 'five hundred dollars to be paid from the estate herein given to my wife, and to be a lien, after the decease of my said wife, upon the property herein bequeathed and devised to her.”
    
      Held, that the power given to the widow to sell and appropriate the proceeds of the sale referred only to the. undivided half of the home farm previously given to her for life;
    That the legacy to John W. Sherrer was a charge upon the property given in fee to the widow, and that she had no power to sell the home farm free from such charge.
    In an action by John W. Sherrer against a purchaser from the widow of the home farm, to enforce payment of his legacy as a lien on the farm, the objection that the plaintiff should first have resorted to the land in the town of Hector, is not available on an appeal from a judgment in his favor, where it does not appear that the testator, at the time of his death, owned the land in Hector, or that it ever came into the possession of the widow,"or that any claim in this respect was set up in the answer or made at the trial.
    Appeal by the defendant, Sarah L. Bartlett,.from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on the 13th day of March, 1899, upon the decision of the court rendered after a trial at -the Schuyler Special Term.
    
      Waldo F. Bishop, for the appellant.
    
      Frederick Collin, for the respondent.
   Merwin, J. :

James P. Sherrer died on March 6,1882, leaving a widow but no-issue. He left a will dated September 7, 1881, and a codicil thereto -dated February 27, 1882, which were afterwards duly probated.

By the 3d clause of the will the testator gave to his wife, and to her heirs and assigns forever, a .lot of land in the town of Hector containing about six acres.

By the 4th clause he gave to his wife the use of his noine farm, in the town of Montour, during her life, with the provision that, “ in case of the provisions herein made shall at any time be insufficient in her opinion for her proper maintenance and support, then I hereby authorize and empower my said wife to lease, mortgage or sell said premises, or any part thereof, and to execute any and all conveyances to accomplish such lease, mortgage or absolute sale, and to appropriate the proceeds thereof to her own use.”

By the 5th clause it was provided that, in case the farm in the town of Montour was not sold by his wife, then all the rest, residue and remainder of his estate therein he devised to Solomon 0. Benson, provided he should pay certain legacies which were made a charge on the farm subject to his wife’s estate and power therein, the legacies to become due and payable one year after the decease of his wife. One of these legacies was $500 to the plaintiff, John W. Sherrer, a half-brother of the testator, another was $500 to Samuel Sherrer, and a third was $500 to such person as his wife should nominate. These legacies were subject to reduction in case the widow incumbered the farm.

By the codicil the testator changed the 4th clause of the will so as to read as follows: “ I give and devise to my said wife, Amitta Sherrer, one undivided half of my home farm in the town of Mon-tour, X". Y., to her, her heirs and assigns forever. The remaining one-half of said farm I give and devise to my said wife, Amitta Sherrer, to her use and benefit for and during the term of her natural life; and in case the provisions herein made shall at any time be insufficient, in her opinion, for her maintenance and support, then I hereby authorize and empower my said wife to lease, mortgage or sell said premises, or any part thereof, and to execute any and all conveyances to accomplish such purpose, and to appropriate the proceeds thereof to her own use.”

The testator, also changed the 5th clause so as to provide that in case the one-half of the farm willed to 1ns wife for life was not sold by her during her lifetime, then he devised all the rest of his estate therein to Benson, provided he should pay a legacy of $500 to Samuel Sherrer, which he made a charge on said one-half subject to his wife’s estate and dower therein, and subject to be reduced if his wife incumbered the said one-half. The other provision of said 5th clause of the will was revoked.

The codicil then proceeded as follows: “ I add to iny said will the following bequests: To John W. Sherrer I will and bequeath five hundred dollars, to be paid one year after the decease of my said wife, said five hundred dollars to be paid from the estate herein given to my wife, and to be a lien, after the decease of my said wife, upon the property herein bequeathed and devised to her.” Then followed a direction as to a monument.

The widow died ¡November 9, 1897, and this action was' coim menced in March, 1899, to enforce payment of the legacy to plaintiff as a lien on the home farm..

On the 8th of March, 1887, the widow, in consideration of $5,000, the full value of the farm, conveyed the same by warranty deed to William Bartlett, Jr., he giving back a mortgage for a portion of the purchase money. This mortgage was assigned by the widow to Hattie L. Boyce, who foreclosed the same and bid in the premises and thereafter conveyed the same to the defendant Bartlett.

At the trial the court held that the legacy to plaintiff was a charge on the undivided,half of the farm devised to the widow, and directed a sale thereof and payment of the legacy from the proceeds.' There' was no personal property with which to pay the legacy.

The view of the trial court was that the power given .to the wife to sell and appropriate the proceeds of the sale to her own use, referred-'only to the undivided half previously given in the same sentence to her for life ; that the legacy to the ■ plaintiff was not a contingent one; that it was the intention of the testator to make it a •charge upon the property previously given in fee to the wife, and that the widow had no power to' sell such property free from the charge.

This view is, I think, the correct one. It is argued that the legacy to plaintiff, if construed as a charge or lien on the property devised "in fee to the widow, is void, as being repugnant to the absolute "devise to the wife. ■ I think not. The two clauses are to be construed •together. The testator, in effect, said that he devised certain property to his wife, but charged thereon a certain legacy that he gave to the plaintiff, making it payable after his wife’s death. This is not a repugnancy, but a qualification, according to the intention of the testator. (See 1 Jarman on Wills [5th ed. by Bigelow], 472 et sea.)

It is suggested by the appellant that the Hector land, devised to the wife by the 3d clause of the will, should have been first resorted to. It does not, however, appear that the testator at his death owned this lot, or that it ever came to the possession of the widow. No ■claim in that respect is set up in the answer or made at the trial.

No good reason is apparent for reversing the judgment, and it should be affirmed. '

All concurred'

Judgment affirmed, with costs.  