
    In the Matter of the Judicial Settlement of the Accounts of William S. Paddock, Sole Surviving Executor of the Last Will and Codicil of Stephen M. Paddock, Deceased, Appellant. Frank Terry and Others, Respondents.
    
      Will — when legacies are payable, and what legacies are a charge, upon the testator’s real property.
    
    Stephen M. Paddock, in 1887, executed his last will and testament, by which he gave to his wife a life estate in his homestead farm and any lands which he might buy adjoining the farm. He then gave to his wife §1,000 out of his personal estate with which to erect two dwelling houses for Prank Terry and Eugene Terry. The will then directed the executors to pay to each of two. parties §25 a year during the lifetime of his wife and, after her death, §100. The 4th clause of the will empowered the executors to sell all other real estate . of which the testator might die seized and, from the proceeds thereof, to pay his wife §1,000 with which to erect a monument. The Use and income of the remainder of the testator’s personal property was then given to the wife for life, and it was provided that the above provisions for her benefit were in lieu, of dower and her distributive share in his estate.
    
      The 7th clause of the will provided that, after the death of the testator’s wife, his estate should be divided between two of his sisters and his nephew in specified proportions. The 9th clause of the will provided: “ After the decease of my said wife, my surviving executor is hereby authorized and empowered to sell the rest and residue of my real estate and convey the same for the purpose of carrying out this instrument.”
    In October, 1894; the testator executed a codicil to the will providing, “I give, devise and bequeath to Eugene Terry and Frank Terry the sum of one thousand dollars each.”
    The testator died October 18, 1895, and his widow died June 26, 1901.
    It appeared that the testator was a farmer whose income was between §400 and §500 a year, and there was nothing to indicate that he had any expectation of augmenting his property to any material extent. After the making of the will he purchased some real estate adjoining the homestead farm, and, in addition thereto, he had a small parcel of real estate which the executors sold under the 4th clause of the will for a small amount.
    It did not appear that the testator had any other real estate. At the time of the testator’s death his personal property was just about sufficient to pay his debts. After the death of his widow the surviving executor sold the homestead farm for about §6,000, and at the time of his accounting had in his hands for distribution the sum of $6,620.26.
    
      Held, that it was the testator’s intention that his widow should have the use of the homestead farm for life, and that she should not be deprived of such use by the sale of the property for the payment of any legacies;
    That the legacy of §1,000, given to the testator’s widow for the. erection of the two houses for the benefit of Frank Terry and Eugene Terry, was to be paid from the personal property in which was to be included the proceeds of the real estate other than the homestead farm;
    That such legacy was not charged upon the homestead farm or upon the land adjoining it;
    That it was the testator’s intention that the legacies bequeathed to Frank Terry and Eugene Terry by the codicil should be paid at the death of the widow and from the proceeds of the homestead farm.
    Appeal by the petitioner, 'William S. Paddock, sole surviving executor, etc., of Stephen M. Paddock, deceased, from a decree of the Surrogate’s Court of the county of Tompkins, entered in said Surrogate’s Court on the 16th day of September, 1902, judicially settling the accounts of the said executor and adjudging certain legacies to be a charge upon the real estate of the testator.
    Stephen M. Paddock, the testator whose will is here for construction, died upon the 18th day of October, 1895, leaving him surviving his widow, Mary A. Paddock, and no children, but two sisters, Sarah E. Warner and ElsCy Ann Burnett, and a nephew, William S. Paddock, a son of another sister. The respondents here are Eugene Terry and Frank Terry, .who were brought up as the children of the testator, who never had children, and they sustained that relationship to the testator until they were twenty-four or twenty-five years of age. In 1887 the will in question was executed. By that will the testator gave to his wife a life estate in the homestead farm and any lands which he might buy adjoining said farm. He next gave to his wife $1,000 out of his personal estate with which she was to erect two dwelling houses of equal cost, as near as may be, on certain real estate which she owned, and which she had.theretofore willed to Frank Terry and Eugene Terry, for the benefit of said legatees. His executors were thereafter directed tó pay to each of two parties $25 a year during the lifetime of his wife, and after her decease $100. The fourth provision of the will follows, wherein his executors were authorized and empowered to sell all other real estate of which he might die seized, from the proceeds of which his wife should receive $1,000, with which she was to erect a monument for their mutual benefit. The use and income of the remainder of the testator’s personal property was then given to the wife for life, and it was provided that the above provisions for her were in place of dower and distributivé share in his estate. By the 7th clause of the will it was then provided that after the death of his wife his estate should he divided, to his sister, Sarah E. Warner, one-half; to his sister, Elsey Ann Burnett, one-fourth; and to his nephew, William S. Paddock, one-fourth. , By the 8tli clause it was provided that his wife should give no security, but that his nephew, whom he joined with her as executor, should give security in a bond in a penalty of at least $15,000. The 9th clause of the will then provides: “ After the decease of my said wife, my surviving executor is. hereby authorized and empowered to sell the rest and residue of my real estate and convey the same for the purpose of carrying out this instrument.” In October, 1894, the testator executed a codicil in these words: “ I give,, devise and bequeath to Eugene Terry and Frank Terry the sum of one thousand dollars each.” On the 26th. day of June, 1901, his widow, Mary A. Paddock* died, and letters, testamentary were duly issued to William S. Paddock, the nephew, as the surviving executor of the will of Stephen M. Paddock. Upon the accounting it appeared that at the time of the death of Steplien M. Paddock his personal estate was just about sufficient to pay his debts. The evidence .is not clear as to just what real estate he had in addition to the homestead farm. After the making of his will, however, he seems to have purchased some real estate adjoining the homestead farm, as was apparently contemplated in the will; and he seems also to have had a small parcel of real estate aside from that, which the executors sold under the 4th clause of the will. The evidence does not disclose what was received from the sale of this real estate, but it appears to have been a small amount. The testator was a farmer, making between $400 and $500 a year, and there was nothing to indicate that he had any expectation of augmenting his property to any material extent. After the death of Mary A. Paddock, the surviving executor sold the homestead farm and received therefrom a little upwards of $6,000, and at the time of the accounting he had in his hands for distribution the sum of $6,620.66.
    Upon his accounting, as surviving executor, Frank Terry and Eugene Terry made claim for payment in full of the $1,000 given to Mary A. Paddock for their benefit, and also of the $2,000 given to them by the codicil of the will, as charged by the will upon the real estate. The special surrogate of Tompkins county has affirmed their contention and directed payment to them of these legacies in full.
    
      David M. Dean, for the appellant.
    
      Randolph Horton, for the respondents.
   Smith, J.:

The construction of the will in question presents some problems not easy of solution. I am convinced that it was intended that the testator’s widow should have the use of the homestead farm for life, and that she should in no way be deprived of that use by a sale of the property for the payment of any legacies. The legacy of $1,000 given to her for the erection of the two houses for the benefit of the respondents here was to be paid from the personal property. In this should be included the proceeds of real estate other than the homestead farm, which the executors were authorized and empowered to sell under the 4th clause of the will. That real estate was charged with the payment of this legacy. The legacy was not, in my judgment, charged upon the homestead farm •or the land adjoining it which was given to the widow for use during her life. The very use to be made of the legacy negatives an intention to charge it upon the homestead farm. It was to be used during the life of the widow for the purpose of erecting two houses upon the property owned by the widow which she was, in her will, to give to these beneficiaries.

Whether the legacies given to the respondents by the codicil to the will were a charge upon the homestead farm presents a more •difficult question. If those legacies must be held to be payable upon the death of the testator, I should strongly incline to think that they were not charged upon the homestead farm. As I have before indicated, I cannot believe that the testator intended that in ■any event the use of the homestead farm should be taken from his widow. While these legacies are absolute in terms, I think it was not intended that they should be enjoyed until after the death of the widow. The testator is presumed to have known that he had no property with which to pay them until after the death of the widow. The legacy of $1,000 given to his widow for their benefit by the 2d clause of the will was to be enjoyed by them only after the death of the widow, when they should receive, under the widow’s will, the land upon which the houses were to be built. After the death of the widow, the surviving executor was directed to sell the homestead farm for the purpose of carrying out this instrument.” In view , of ' all these circumstances, the probable intention of the testator was to give tó these respondents these legacies of $1,000, making them payable at the death of the widow and from the proceeds of the homestead farm. With this construction, the will seems to be consistent and one possible of execution.

The decree should, therefore, be reversed on law and fact, and the matter remitted to the surrogate, with directions to ■ proceed in, accordance with the views here expressed.

All concurred; Parker, P. J.¿ in result.

Decree of the surrogate reversed on law and facts and matter remitted to the surrogate, with directions to proceed in accordance with opinion.  