
    Wieting et al. v. Billinger et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    November 20,1888.)
    1. Wills—Construction—Repugnant Provisions.
    A testator devised land to his sonin fee; by another clause he provided that, should the land be sold at judicial sale for the devisee’s debts, $1,500 should be retained out of the proceeds by the executors, and divided among testator’s other children. The devise was not on condition that the devisee’s estate on his becoming indebted should be terminated and limited over. Held, that such a provision was repugnant to the estate granted, and therefore void.
    8. Same—Devise Subject to Legacies—Mortgages—Order of Alienation.
    Lands devised subject to a charge for legacies are liable for the unpaid legacies-in the hands of purchasers under mortgages executed by the devisee, in the inverse; order of the dates of the mortgages.
    Appeal from special term, Montgomery county. .
    The action was brought by Archibald Wieting, administrator, and others,, against William Billinger, Benjamin J. Getman and others, purchasers at, foreclosure sale, to charge certain premises devised by the will of Jacob Wieting, deceased, to his son Christopher Lorenzo, with the payment of certain-legacies. The testator, by the tenth article of his will, devised his homestead; farm to his son Christopher Lorenzo, in fee, “on conditions that he complies-with the conditions hereinafter'named.” He then devised him a wood lot in fee. His will then proceeds: “I order, request, and desire that he, Christopher Lorenzo, pay $1,500, to be paid in two payments, to-wit, $750 within three years after my decease, and $750 within five years after my decease, for the benefit of all my other children except Jacob A. and Christopher Lorenzo,, and I hereby order my executors to collect the same at the time specified, and-divide the same equally among my children,” naming them. By his codicil he directed “that in addition to the sums which Christopher Lorenzo is to pay for the benefit of my other children, as stated in article 10 of said will, that he pays $700 for the benefit of all my other children. I therefore order and. direct my executors, within seven years after my decease, to collect $700 from him, Christopher Lorenzo, and divide the same equally among all my other children,” naming them. By the tenth clause of the will, as amended by the codicil, the testator provided: “If, however, my son Christopher Lorenzo-should sell said homestead farm within fifteen years after my decease, which I now bequeath unto him, in that case I direct and order that he shall pay $1,500 in addition to the sum already mentioned, and I hereby order and direct my executors to retain said sum of $1,500 out of the sale of said farm, and divide the same among all my children, ” naming them. This clause of the will the court held to be void, as repugnant to the fee devised, and no appeal has been taken. The tenth clause further proceeded: “*Or if, in case my son Christopher Lorenzo shall by ill or bad management become involved m debt in such manner that said homestead farm should have to be sold by sheriff's sale, or some other public sale, in that case I order and direct that. $1,500 be kept out of the said sale of said farm, and equally divided among all my children, as specified above. * * * The bequests made to my son Christopher Lorenzo are not to be considered valid or legal until he has fully paid the sums of money specified in this article; or, in other words, the money which he is to pay to my executors is to be a lien on the farm and wood lot-till paid. ”
    Christopher Lorenzo did not pay in full the sums he was directed to pay in three, five, and seven years. He was the sole executor who qualified. He mortgaged the homestead to Lewis H. Billinger, in 1877, to secure the payment of his bond to him for $4,000, and in 1878 for $1,000 more. These mortgages embraced 25 acres of other land, purchased by him after his father’s death. After the Billinger mortgages had been recorded he gave a mortgage for $800 to Rebecca Getman, to secure his bond to her for that sum. The Billinger mortgages were foreclosed, and the mortgaged premises sold to the mortgagee in February, 1880, for $5,000, leaving a deficiency of $868.91. The mortgage on the wood lot was also foreclosed, and the lot was sold te Benjamin Getman, in August, 1879, for $600, leaving a deficiency of $427.10. Christopher Lorenzo has since remained insolvent. The plaintiffs are the legatees, or their administrators or assignees, under the will of Jacob Wieting. The court held that the homestead and wood lot were subject to the unpaid portions of the three legacies payable in three, five, and seven years, and are to be collected out of the same. No question is made here as to the correctness of the decision in that respect, except among the defendants themselves as to priority of liability. The plaintiffs were not parties to the foreclosure action, but they gave notice at each foreclosure sale of the claims they seek to enforce in this action. Defendant Billinger and others, not including defendant Getman, appeal. The main question raised by this appeal is as to the judgment declaring the validity and lien of the legacy of $1,500 to be given in case of a sheriff’s sale or some other public sale of the premises.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      F. Countryman, for appellant Billinger. Shultz & Borst, for respondent Getman. Wm. Kernan, for plaintiffs, respondents.
   Landon, J., (after stating the facts substantially as above.)

The tenth article of the testator’s will contained the following clause: “I give, devise, and bequeath unto my son Christopher Lorenzo (on conditions that he complies with the conditions hereinafter named) my homestead farm.” The will and codicil then made several bequests to his other children, $2,200 of which Christopher Lorenzo was required to pay. Then followed these clauses in the will: “If, in case my son Christopher Lorenzo shall by ill or bad management become involved in debt in such a manner that said homestead farm would have to be sold by sheriff’s sale, or some other public sale, in that case I order and direct that $1,500 be kept out of the sale of said farm, and equally divided among all my children, as specified above.” “The bequests to my son Christopher Lorenzo are not to be considered valid or legal until he has fully paid the sums of money specified in this article, or, in other words, the money which he is to pay to my executors is to be a lien on the farm and wood lot till paid. ” Christopher Lorenzo did become, 12 years, after the testator’s death, involved in debt in such a manner that the said homestead farm had to be sold at public sale to satisfy the mortgages which he placed upon it, and under which sale in foreclosure the defendants Billinger now own the same. The trial court held that the provision for the payment of $1,500 was a valid one, and a lien upon the land; and the judgment provides for its satisfaction by a sale thereof. The testator devised his homestead farm to Christopher Lorenzo, “on conditions that he complies with the conditions hereinafter named.” These conditions are that he pay the legacies which he bequeaths to his other children. He explains his meaning thus: “The money which he is to pay to my executors is to be a lien on the farm and wood lot till paid. ” The conditions are not made grounds of forfeiture, but are secured by being made liens. The devise is absolute, and the devisee, by accepting it, becomes liable personally to pay the legacies charged upon it. Gridley v. Gridley, 24 N. Y. 134. The devise is in fee-simple, but incumbered with liens for the legacies unconditionally given. Fox v. Phelps, 17 Wend. 393; Helmer v. Shoemaker, 22 Wend. 137; Parsons v. Best, 1 Thomp. & C. 211; Roseboom v. Roseboom, 81 N. Y. 356; Clarke v. Leupp, 88 N. Y. 228; Campbell v. Beaumont, 91 N. Y. 465. An estate in fee-simple excludes-the idea of any restraints upon the power of alienation, or of any liability to-forfeiture, or of any limitations upon it. Hence, when full title is given, any attempted restraint upon alienation must be void, because unable to co-exist with it, and repugnant to it. Same cases; Oxley v. Lane, 35 N. Y. 346; De Peyster v. Michael, 6 N. Y. 491; Newkerk v. Newkerk, 2 Caines, 345; Craig v. Wells, 11 N. Y. 315. But here the attempt appears to have been to permit to the devisee full power of alienation, with liability to incumber his estate through bad management, but, in the event of his incurring the lawful-consequences of this liability, to charge a further legacy of $1,500 upon him, and keep the atiiount out of the proceeds realized to satisfy his liabilities. The testator could give as many legacies as he chose. He could make their gift dependent upon the happening of a future event; in other words, could annex the gift to the event. Such a legacy would be valid, provided the testator made lawful provision for its payment. The testator made no provision from his personal property for this legacy, but he attempted to provide for it at the expense of Christopher Lorenzo’s creditors. • He contemplates the contingency that Christopher will become by his bad management so involved in debt that the homestead devised to him will have to be sold to pay his debts. He admits the paramount right of the creditors to compel the sale to satisfy their demands, and then he insists that they must not be satisfied, and he tries to intercept the proceeds of the sale, and apply them upon this legacy. The legacy does not vest while Christopher holds the land, and it is difficult to see how it can become a lien upon it afterwards. It is equally difficult to see how the testator can permit Christopher Lorenzo to squander his inheritance, and yet retain the right to reclaim it afterwards, and bestow it anew. There seems to be no provision for the payment of this legacy except the impossible one of applying property after it has been wasted. This attempt to establish a legacy charge against the homestead is an attempt to impose a restraint upon the alienation of the estate in fee-simple devised to Christopher Lorenzo, and, within the cases already cited, is void. If the devise had been to the son, and, in case he should become bankrupt or insolvent, nr a judgment should be recovered against him, then over to satisfy this legacy, it would have been good. Bramhall v. Ferris, 14 N. Y. 41, and cases there cited; Nichols v. Baton, 91 U. S. 716. In Bramhall v. Ferris it is held that a testator may devise his estate to A. to hold until some event happens like bankruptcy, and then give it to B. But, in the absence of any devise over, A. will take the entire estate, and any attempt to clog it with conditions short of a devise over will be nugatory. The court quotes with approval from Brandon v. Robinson, 18 Ves. 429, the distinction applicable to the case before us: “There is an obvious distinction between a disposition to a man until he becomes a bankrupt, and then over, and an attempt to give him property, and to prevent his creditors from obtaining any interest in it, although it is his.” This legacy was sought to be conditionally charged upon real estate. There was no trust, and no direction by the testator to sell the real estate to raise the legacy; there was no devise over for the purpose of satisfying it. Instead of an attempt to divest Christopher Lorenzo of the land by a devise over, upon his becoming insolvent, he permits him to divest himself of it by his improvidence, and then attempts to intercept the proceeds. These proceeds are not his to bestow. They are not realized by any scheme of his, but by virtue of methods which he foresees and deprecates. This legacy fails because there was no lawful provision for its payment. The condition imposed upon the devisee’s full power of alienation is void, because it is a restraint repugnant to the estate in fee-simple devised to him.

A question arises between the defendants respecting the priority of liability of the wood lot and homestead to sale to satisfy the unpaid part of the $2,200 legacies, which were found to be liens upon both premises. The homestead was first mortgaged to Billinger, and the wood lot next mortgaged to Get-man; and some of the defendants own the homestead under the sale in foreclosure of that parcel, and other defendants own the wood lot under the foreclosure sale of that parcel. The trial court held that these parcels should contribute ratably. When Billinger took the mortgage upon the homestead, Christopher Lorenzo had the wood lot remaining from which to satisfy the legacies; and, as between them, the wood lot was liable to be sold first. Subject to that liability, Christopher Lorenzo gave the mortgage to Getman. Ho equities exist requiring a departure from the rule that, as between successive purchasers of parcels of incumbered premises, the sale to satisfy the common incumbrance should be in the inverse order of alienation. The purchasers at the two foreclosure sales respectively, took whatever title Christopher Lorenzo had at the date of the mortgage under which the sale was had. The title to the homestead under the first mortgage was subject to the liens of the unpaid legacies, but equitably protected against them to the extent of the wood lot yet remaining in the hands of Christopher Lorenzo; and the title to the wood lot, under the mortgage afterwards given upon it, is subject to the same equities in favor of the homestead title, since the purchaser stands in Christopher Lorenzo’s shoes.

There was no appeal from that part of the judgment adjudging the invalidity of that clause of the will which imposed upon Christopher Lorenzo the payment of additional legacies in case he sold the homestead within 15 years; and, although we are urged to review it, we must decline to do so. It seems to have been an illegal restraint upon alienation.

The judgment should be modified by declaring the clause in the will void which provided that, in case Christopher Lorenzo should become involved in debt in such a manner that the homestead would have to be sold, the sum of $1,500 should be kept out of the sale and paid to the testator’s other children, and by striking from the judgment the provisions dependent thereupon. Also by directing that the wood lot be first sold to pay the unpaid portions of the other legacies. Costs of this appeal are allowed to the appellants against the plaintiffs (respondents.) All concur.  