
    Rowland Brill, as Executor, etc., Resp’t, v. William H. Wright, as Executor, etc., et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 15, 1889.)
    
    1. Will—Residuary clause—Rule op construction op.
    General language in a -will giving legacies, followed by the usual residuary clause, is alone insufficient to charge the legacies on the realty. 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 testator’s intention that the legacy should be charged on the land.
    
      2. Same—When legacy not a charge upon real estate.
    A testator’s will, after the usual introductory clause, was as follows: ‘' First, after all my lawful debts are paid and discharged, I give and be queath to Job S. Benjamin the sum of $2,000, to be paid to him within three months after my decease. Second, I give and bequeath all the rest and residue of all my real and personal estate, of whatsoever name and nature, to James O. Cronk and Matilda Cronk, to each one-half part thereof.” The personal estate left by the testator would have been ample to have paid the legacy and all the ordinary expenses of the administration. The legatee was of kindred to the testator, and the residuary devisees and legatees were strangers in blood, but they became members of his family when they were children and lived with him until his death, one for a period of twenty years and the other for a period of twenty-five-years. The testator’s wife was infirm and a cripple and died a short time-before the death of the testator, and they had no children or direct: descendants living. Field, that there were no circumstances which took the case out of the general rule. That the legacy was not charged on the-real estate which passed under the residuary clause to James O. Cronk: and Matilda Cronk.
    
      Appeal from a judgment of the supreme court, general term, second department, affirming a judment in favor of Ahe plaintiff.
    
      C. B. Herrick, for app’lts; O. D. M. Baker, for resp’t,
    
      
      
         Reversing 8 N. Y. State Rep., 814.
    
   Andrews, J.

Where, in a will, general legacies are .given, followed by a gift of all the rest and residue of the real and personal property of the testator, by a residuary -clause in the usual form, and nothing more, it must now, we think, be regarded as the established rule in this state that the language of the will alone, unaided by extrinsic -circumstances, is insufficient to charge the legacies upon lands included in. the residuary devise. This was clearly the opinion of Chancellor Kent in the leading case of Lupton v. Lupton (2 Jo. Ch., 614), as appears by his comment on the case of Brudenell v. Boughton (2 Atk., 268), , although his judgment in that case rested in part upon the circumstance that in the will then under consideration there was a prior devise which easily permitted an interpretation “reddendo singula singulis” of the residuary clause.

In Hoyt v. Hoyt (85 N. Y., 142), Folger, Ch. J., referring to Lupton v. Lupton, and other cases, justly stated that they asserted the doctrine that, “unaided and alone, the words that make up the usual residuary clause of a will are not enough to evince’ an intention in the testator to charge a general legacy upon real estate,” but the question was not passed upon in that case.

The courts, however, have held that a gift of general legacies, followed by a general residuary clause, is not inconsistent with an intention on the part of a testator to charge the legacies on the land.

They have, therefore, permitted extrinsic circumstances to be considered for the purpose of ascertaining the actual intention of the testator, and in some cases, by reading the language of the will in the light of the circumstances, have .inferred an intention to charge legacies on the land, and given effect to such intention, although the language considered independently of the circumstances, would not alone justify such an inference.

The cases of Wiltsie v. Shaw (100 N. Y., 191), and McCorn v. McCorn (100 N. Y., 511), illustrate very clearly the attitude of - this court upon the subject. Both were cases substantially of wills giving general legacies, followed by the usual residuary clause. In each, the question was whether the legacies were charged on the land. In Wiltsie v. Shaw it appeared that the testator left a large personal estate, ample for the payment of debts and legacies, and no other circumstances appearing, it was held that a legacy given by the testator in his will in trust for a son was not a charge on the lands, which passed to the testator’s daughter under the residuary clause. In McCorn v. McCorn, the legatees were the wife and son of the testator, and the gift of the legacies was followed by the usual residuary clause, under which all the testator’s real estate passed to four other children. It appeared that the wilwas made the day before the testator’s death, and that his-personal estate was insufficient to pay his funeral expenses. The legacies to the testator’s wife and son were mere pretences, “unless meant to be a charge on the real estate.” Under these circumstances, the court held that the legacies were intended to be charged on the realty, and sustained, the claim of the legatees.

We think 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.

The rule in England, and in some of the states in this-country, and in the United States supreme court, is different from the rule in this state. The cases are cited in. Hoyt v. Hoyt (supra). In Greville v. Browne (7 H. L. Cas., 689), it was regarded as having been long settled in England that where legacies are given generally, and the rest and residue of the real and personal estate is after-wards given in one mas.s, the legacies are a charge on the-residuary real as well as the personal estate. But some of the judges were of the opinion that if the question was res-nova, the natural construction of the language would lead to the opposite conclusion.

Under the rule in this state, we think the legacy of' $2,000, given by the will of Job Seaman, to his nephew, Job S. Benjamin, was not charged on the real estate which passed under the residuary clause to James O. Cronk and Matilda Cronk. The will is very simple, and is partly printed and partly written. After the usual introductory clause, the will proceeds as follows:

First. After all my lawful debts are paid and discharged, I give and bequeath to Job S. Benjamin, the sum. of two thousand dollars; to be paid to him within three-months after my decease.

Secondly. I give and bequeath all the rest and residue of all my real and personal estate of whatsoever name or-mature, to James O. Cronk and Matilda Cronk, to each the •-one-half part thereof.

Likewise, I make, constitute and appoint William H. "Wright, ‘executor,’ etc.”

It is claimed that the words in the first clause, viz.: “After, all my lawful debts are paid and discharged, I give,” -etc. (which were printed), indicate an intention to constitute the whole estate, real and personal, a fund for the payment in the first instance, of the debt and legacy. The direction -as to the payment of debts, was formal and conventional merely. The law charges the debts, bf a decedent, upon his real estate, if the personal estate is insufficient to pay them. The debts owing to the testator amounted only to $114.11, and his personal property was appraised at $2,643.07, and produced $3,553.36. Similar language was in the will considered in the case In re Rochester (110 N. Y., 159; N. Y. State Rep.), and was held insufficient to create a charge on the realty. The extrinsic circumstances' do not tend to show an intention on the part of the testator, to charge the legacy on his real estate. Except for the expenses allowed -against the estate, growing out of a contest on the probate of the will, instituted by the legatee and a niece of the testator, and in subsequent proceedings on an accounting by the executor, the personal estate left by the testator would have been ample to have paid the legacy and the ordinary expenses of administration. The legatee was of kindred to the testator and the residuary devisees and legatees, were strangers in blood. But they became members of his -family when they were children, and lived with him until "his death, one for the period of twenty, and the other for twenty-five years The testator’s wife was infirm and crippled, and died a short time before the testator, and they .'had no children, or direct descendants living.

We perceive no circumstance which takes the case out of the general rule. The condition of the testator’s property when the will was made in 1879, four years before his death, is not shown. He was a small farmer, and it is quite probable that his circumstances had not materially changed' during that time. It may be assumed that the testator intended that the legacy to his nephew should be paid. But there is no presumption that when the will was made his personal estate was not adequate for that purpose. If it was not and the fact was material, the burden of establishing it was upon the legatee, who, in this proceeding, is seeking to charge the real estate in a case where the language of the will does not affirmatively show "that_ this was the intention of the testator. It is quite significant of his actual intention that he directs the legacy to be paid within three months after his death, and gives mo power of sale to his executor.

We think the judgment below should be reversed and a mew trial granted, with costs to the executor appellant in mil courts against the respondent, but without costs to the other defendants.

All concur.  