
    In the Matter of the Petition of Otto Herborn, to Render and Settle His Account as Surviving Executor of Louisa Schulz, Deceased, Respondent. Augusta Ambs, Appellant; Augusta Ambs, as Executrix, etc., and Another, Respondents.
   There is nothing on the face of the will to indicate the intention of the testatrix that the legacy of $18,000 to her husband, of $1,000 to her grandniece, and of $300 to her executors to keep her grave in repair, should be charged upon the real property. The intent of the testatrix, however, may be determined by a consideration of the condition of her estate at the time the will was made. If it could be found upon evidence that she at that time had so little personal property that the legacies were an idle form and ineffective, the conclusion might be drawn that the testatrix intended that they should be charged upon the realty. We find, however, no such evidence in the case, and are, therefore, led to the conclusion that the decree of the Surrogate’s Court, in so far as it determines that these legacies were chargeable upon the real property, is without proper foundation in the evidence. As it is possible that such evidence may exist, especially as it appears that evidence of the condition of the estate was at one time presented to the Comptroller for the purpose of appraising the estate for the inheritance tax, we, therefore, remit the case to the Surrogate’s Court to proceed in accordance with this opinion. Decree of the Surrogate’s Court of Kings county reversed in so far as it finds that the legacies are chargeable upon the real property and directs distribution accordingly, with costs payable out of the estate to the appellant, to the accounting executor, to the respondent Augusta Ambs, as administratrix of Louisa Ambs, deceased, and to Dora Schulz, executrix of the will of Eugene Schulz, deceased, and the ease remitted for further proceedings not inconsistent with this opinion. Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ., concurred. Order to be settled before Mr. Justice Blackmar.  