
    William B. Briggs, Resp’t, v. Peter D. Carroll, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 26, 1889.)
    
    Will—Construction on—Legacy when a charge upon realty.
    Testator gave Ms wife a legacy of $2,500; Ms son, Charles, $1,500, and to plaintiff, Ms grandson, $500. At the time of executing the will,_ his personal property was not more than $1,500. He accumulated liabilities during the next eight years, so that, at his death, the debts more than exhausted the personal estate. Held, that plaintiff’s legacy was clearly intended by testator to be a charge upon the realty.
    
      Appeal from judgment of supreme court, general term, fifth department, affirming judgment for plaintiff, entered on findings and decision of judge of special term.
    
      M. A. Leary, for app’lt; Chas. S. Baker, for resp’t
    
      
       Affirming 20 N. Y. State Rep., 553.
    
   Finch, J.

The testator by his will gave to his wife a legacy of $2,500, to be accepted by her in lieu of dower; to his son, Charles, $1,500, “ to be held and used by his mother as necessity might require for his education; ” and to his grandson, the plaintiff, $500. He directed these legacies to be paid within one year after his death. Their bequest was followed, by a residuary clause, which reads thus: “I give and devise all the rest, residue and remainder of my real and personal estate, goods and chattels of what nature and kind soever to my four children, viz.: Kate L., C. J., Sarah, and the above named Charles W., to be divided equally between them, or their heirs and assigns, share and share alike.” The will was executed about eight years before the testator’s death At that time he had no money or securities, but his whole personal estate consisted of the usual farm property, such as stock and grain, and was in value no greater than it proved to be at the time of his death It appears that such value was not in excess of $1,500. At the date of the execution of the will he seems to have been substantially free horn debt, but thereafter gradually accumulated liabilities which, at his decease, his personal estate was insufficient to pay. The widow and son took their legacies in the land by the process of buying in the interests of the other children. The debts were paid, which more than exhausted the personal estate, and the widow, who finally bought out Charles, and became sole owner of the land, promised to pay the plaintiff’s legacy, but has been unable to do so. She mortgaged the property, and it has been sold on foreclosure to the defendant, who bought with notice of the plaintiff’s claim against the land.

On this state of facts the courts below have held that plaintiff’s legacy was a charge upon the realty, and the defendant appeals from that decision.

In Brill v. Wright, 112 N. Y., 129; 20 N. Y. State Rep., 305, the rule prevailing in this state is held to be that a residuary clause coming after a bequest of legacies and disposing of both the real and personal estate together and by one form of expression, will not alone justify a construction that the legacies are charged upon the land, but will do so where it appears in addition, from such extrinsic facts as may be resorted to, that there was in truth an intention to charge the debts upon the land; and we have inferred that intention where the personal estate of the testator was,' at the date of the will, largely and clearly insufficient for the payment of the legacies given, and the testator must have known and understood that they could not be paid except by the aid of the real estate. That was the doctrine of McCorn v. McCorn, 100 N. Y., 511, the facts in which case, it must be admitted, were stronger than in this.

Revertheless, we are of opinion that the courts below were right in their disposition of the case. Here were legacies of $4,500, with but $1,500 worth of personal property out of which to pay them. One of these was in lieu of the wife’s dower, and another for the education of the son Charles. The declared purpose of each gift leads strongly to an inference that the testator did not suppose that they would, or mean that they should, abate and be largely reduced Very soon after the execution of the will we find him buying more land and using $700 of his personal estate in making the first payment. And during the remainder of his life he not only steadily failed to increase his personal estate, but continuously depleted it as a source of payment of the legacies by a persistent accumulation of debt, which in the end more than absorbed the whole personal assets. The testator must have realized the situation. He could not have been deceived or mistaken, and so we are shut up between two alternatives. Either he intended to sacrifice the comfort and welfare of his wife and son Charles for the benefit of his older and married children, and deliberately continued to make their situation worse by putting personal estate into land and incurring debts, or he supposed that their legacies would vest upon his real estate. I think we are justified in holding that the latter was his understanding of the will.

We are very far from saying that a residuary clause, blending in its form of disposition both real and personal estate, will produce a charge upon the former for the payment of legacies wherever the personal estate proves insufficient. Ho such doctrine can be justified. The deficiency must exist when the will is executed, and be so great and so obvious as to preclude any possible inference that the testator did not realize it, or that he may have expected and intended before his death to remove the difficulty. H the disparity, even though serious, is such that the testator might have been unconscious of its existence, or so dependent upon estimates of value that in the decedent’s judgment it might have been adequate to the burden imposed, or such that he might reasonably expect to repair the deficiency before his death, the ground for inferring an intention to charge the land would disappear. But none of these things are found in the present record. The legacies were three times the value of the personal estate, and it is impossible to imagine that the testator aid not know it; they were provisions in lieu of dower and for the support and education of a minor child which it is hard to suppose were meant to abate; and the subsequent action of the testator strongly indicates that he meant to impose their payment upon his lands. We think the facts of this case bring it up to the required standard.

The judgment should be affirmed, with costs.

All concur.  